A police officer is empowered to require the name and address of a person reasonably believed to have committed an offence or of a person who may be able to assist the police in the investigation of an indictable (i.e. more serious) offence (s.456AA Crimes Act 1958 (Vic) ("Crimes Act (Vic)")). The police officer must inform the person of the grounds for that belief, and upon request must provide the person with their name, rank and place of duty.
A person who fails to comply with this requirement, or who provides false information, is guilty of a summary offence (see: "Glossary" for definition).
A young person, at the request of the police, must also provide their name and address if they are:
- driving a motor vehicle;
- requesting or receiving liquor. On licensed premises, the licensee's employees may also make this demand. Failure to give correct information is an offence; or
- detected contravening the Transport (Compliance and Miscellaneous) Act 1983 (Vic) or Regulations, or have entered a station or travelled without a ticket. The young person must also give their correct name and address to an authorised employee of the Transit Authority when requested. Failure to do so is an offence.
When the police begin enquiring about a young person's activities, they may ask the young person to go to the police station with them. The young person does not have to go unless arrested, in which case the police are obliged to state the offence for which the young person is being arrested (see also: "Arrest and interrogation of children", in Chapter 3*2 Arrest and Interrogation).
Similarly, the young person does not at any time have to answer any questions (apart from the above requirements to provide name and address). It is, therefore, wise for a young person to tell the police courteously that they do not wish to answer any questions until a lawyer has been spoken to.
If a young person is under 18 and is detained on suspicion or under arrest, the police must not question that person or carry out an investigation in which that person takes part (e.g. a re-enactment of the offence) unless:
- the young person has been allowed to communicate in private with their parent or guardian or an independent person (see: "Role of the independent person" in Chapter 3*2 Arrest and Interrogation) before the questioning or investigation begins;
- the young person has been allowed to communicate or attempt to communicate with a lawyer;
- a parent or guardian of the young person or, if they are not available, an independent person is present;
- an interpreter is present if the young person does not understand English; and
- the police have told the young person that they do not have to say or do anything, but that anything the young person does say or do may be given in evidence (s.464A–E Crimes Act (Vic)).
A young person is entitled to a copy of a taped or DVD record of interview (s.464H(3) Crimes Act (Vic)) or statement, whether signed or not. No record of interview or statement should be made to the police or signed or even initialled until legal advice is obtained.
A police interview at school of a young person who is a suspect in a criminal matter should only occur if the young person's parent or guardian, or their nominee, is present or if the principal believes that the interview may assist to avert a possible physical injury to any person or further damage to property. Such an interview would still be subject to sections 464A–J of the Crimes Act (Vic).
In certain circumstances, police may require young persons to give fingerprints and forensic samples. For full details of these powers, see: "Evidence", in Chapter 3*2 Arrest and Interrogation.
If the police believe that an offence has been committed by a young person, they may:
- arrange for an official caution (by a police officer) to the young person in the presence of the parent or guardian;
- summons the young person to court. If that happens, the young person will be allowed to go free after the interview and will probably be told that they will receive a summons; or
- arrest and charge the young person. If this happens, the young person can be released on bail (s.346 CYFA). (See: Chapter 3*3 Bail). The young person should speak to a lawyer about bail.
If a young person is not released unconditionally or bailed by the police, they must be brought before a Children's Court or, if the court is not sitting at a convenient venue, before a bail justice within a reasonable time, but no later than 24 hours after being taken into custody. A bail justice who does not grant bail can only remand a young person in custody until the next working day of the Children's Court or, in certain prescribed country regions, within two working days. A Children's Court can only remand a young person for a maximum of 21 days. A young person cannot be refused bail solely because of lack of adequate accommodation (s.346).
A young person remanded in custody must be placed in a remand centre (i.e. Parkville for all young women and young men under 15, and Melbourne Youth Justice Centre for young men over 15) unless otherwise provided for in the Children, Youth and Families Regulations 2007 ("CYF Regulations") (s.347). The CYF Regulations provide that a young person remanded in custody may be placed in a police station or other suitable place in 10 prescribed country regions for a period of not more than two working days.
A young person who must appear before the Children's Court should obtain legal advice as soon as possible. If in an institution awaiting the hearing of the case, the young person should speak to one of the officers and ask if they can arrange a lawyer. VLA will, at no cost, send a lawyer to interview those in custody. VLA solicitors attend Melbourne Youth Justice Centre and Parkville Youth Residential Centre regularly. The young person should enter their name in the Legal Aid Record Book.
The police usually advise parents to attend court. It is important in most cases that at least one parent attends court.
Arrangements should be made for witnesses to attend court if the case has been booked in for a contest. They may be able to give evidence showing the accused to be innocent of the offence. If necessary, witnesses can be forced by subpoena (a summons commanding the appearance of a person) to attend the Children's Court. Forms are available at any court.
The young person should also contact character witnesses, that is, people who could give a reference (e.g. a teacher, employer or welfare worker). Tell them what has happened and ask them if they would come to court. They may be reluctant, because they will have to wait for the case to be heard. If they are unable to attend the court hearing, written references should be obtained from them. Those references should state who they are, how long they have known the young person, and what they think of the young person's character, and anything else that they think may be relevant to the charges. Ultimately that reference will be handed to the Magistrate.
The time, date and place of the hearing will appear on the summons, if the young person has been given one. If the young person has been charged and bailed, the arresting officer will state when and where the hearing is to take place. If a case is contested it must be adjourned. The first summons date is a "mention date", and the case may be adjourned at the defendant's option by prior arrangement with the court by contacting the Registrar of the Children's Court. It is best to contact a lawyer to arrange this, before the hearing date.
If the young person does not have a lawyer, a VLA duty lawyer may be able to assist in the conduct of the case. Duty lawyers attend Melbourne and metropolitan Children's Courts.
VLA funds duty lawyers who will represent young people at all metropolitan courts and most country courts. Contact VLA on 9269 0234 as early as possible; do not leave it until the actual day of the hearing.
If the young person has difficulty in understanding English, the lawyer and the Registrar should be told prior to the hearing date if possible, so that arrangements can be made for an interpreter to be in court. The court must not proceed without an interpreter if a young person, parent or other party has difficulty communicating in English (s.526 CYFA).
A clerk from the Registrar's Office will call out the young person's name when the case is to be heard. Inside the courtroom there will be a Magistrate who will be deciding the case. The Magistrate usually sits on a raised platform. There will also be the clerk, usually sitting beside or in front of the Magistrate, and the police prosecutor sitting near the front of the court. There may also be a police officer in uniform standing at the door. Other people may also be in court .
The Magistrate or the clerk will tell the young person and others where to sit or stand.
The Magistrate or the clerk will ask the young person's name, age and who the other people are. When speaking to the Magistrate it is courteous to call her or him "Your Honour".
The clerk will then read out the charges and ask whether the young person is pleading guilty or not guilty. Again, it is best to seek legal advice before pleading, as each case differs. As a general rule it is best to plead not guilty if there is any doubt at all as to guilt or innocence. Do not take any notice of what anybody other than your lawyer says, whether they be police or friends. The police have to prove that the young person is guilty; the young person does not have to prove innocence.
If the offence is an indictable (more serious) offence, the Magistrate will then tell the young person that they may have the case heard by a Judge and jury in the County Court. It is best to ask a lawyer whether it should be heard in the Children's Court or before a Judge and jury (see: Chapter 3*4 Types of Crime: Which Court?). The young person's lawyer will usually tell the Magistrate whether the young person is pleading guilty or not guilty to the charges and whether the young person agrees to the matter being heard in the Children's Court.
If a young person is pleading guilty to the charges, the police prosecutor will give the Magistrate a summary of the facts. Sworn evidence is not usually given.
If a young person intends pleading not guilty to charges, or if there is disagreement as to the summary of the facts, the case will usually be adjourned to another day for "contest mention". At the contest mention, discussions are held between the young person (or, more often, the young person's lawyer) and the police to attempt to reach an agreement about the issues in dispute. For example, the police may agree to withdraw some charges if the young person agrees to plead guilty to others. If agreement is reached, the case will usually be heard as a plea on that day. If agreement is not reached, the case will be again adjourned for the contested hearing proper.
In all contested cases in the Children's Court, the first evidence to be given is that of the prosecution witnesses (usually the police). The prosecution has to prove the charge beyond reasonable doubt.
The witness will go into the witness box at the front of the court near the Magistrate. After swearing or declaring to tell the truth, the witness will be questioned by the prosecutor about the case. This is quite often done by referring to details that the witness (particularly the police) wrote in a notebook at the time that the young person was interviewed or by referring to any statement that may have been made.
When the prosecutor has finished questioning the witness, the Magistrate will tell the young person that they may also ask questions or cross-examine the witness. If represented by a lawyer, the lawyer will cross-examine the witness. This is the lawyer's opportunity to try to get the witness to assist the defence case by answers to questions. It is not the time for the accused to make a statement (that comes later).
The prosecutor may, when that cross-examination is finished, re-examine the witness to clarify some matter that arose in the cross-examination.
The prosecutor will tell the Magistrate when all the prosecution witnesses have given evidence. Sometimes the Magistrate will stop (dismiss) the case at this stage because there is no case to answer. That is because the prosecution has not called evidence that could establish an offence may have been committed.
If the contest is to proceed, the young person has the option to give sworn evidence or no evidence at all. Advice should be sought from a lawyer on this point.
When talking to the Magistrate or answering questions, the young person should face the Magistrate and speak up clearly. If evidence is given, the prosecutor will usually cross-examine. The prosecutor's questions should be answered as clearly and as briefly as possible.
A young person is also able to call witnesses to give evidence. Except in Family Division proceedings, this evidence will be restricted to the facts which caused the charge to be laid. It does not usually concern the young person's character. That evidence may be given later. The witness will go into the witness box and be questioned by the young person or their lawyer and the prosecutor.
When all the evidence is completed, the Magistrate will state whether the charge has been proven beyond reasonable doubt or not proven. If the Magistrate decides that the case has not been proven, the charge will be dismissed and the young person will be free to go.
On the other hand, if the Magistrate finds that the case has been proven, the prosecutor will be asked whether there are any prior court appearances. If there are any prior court appearances, the prosecutor will show the young person or lawyer a list of the prior appearances and, if there is agreement as to the information on the list, hand it to the Magistrate.
The prosecutor should not read out details of any cautions administered to the young person under the Police Cautioning Program (s.358 CYFA). A young person who cannot remember previous appearances on the list should tell the Magistrate. Otherwise, they should admit those prior appearances.
If the case is proven, the Magistrate will ask the young person's lawyer to address the court on the issue of sentencing. The young person will, if they wish, have an opportunity to make a statement before a final decision is made. As the Magistrate probably does not know the young person, it may help to have a character witness.
The witness should go into the witness box and explain to the Magistrate:
- why the young person has prior appearances, if it is felt such explanation will help;
- whether there are any extenuating circumstances, for example, the young person may have played a minor role in the offence;
- whether the Magistrate should be lenient because of difficulties the young person has had, for example, at home or at school;
- whether the young person is of good character; and
- whether the young person is likely to reoffend.
The Magistrate wants to know as much as possible about the young person before making a final decision. The Magistrate is also concerned about the young person's welfare and wants to ensure that they will not re-offend.
The CYFA provides that, in deciding which sentence is appropriate, the Magistrate must as far as is practicable consider (s.362(1) CYFA):
- the need to strengthen and preserve family relationships;
- the desirability of allowing the young person to live at home;
- the continuity of education, training or employment;
- the need to minimise stigma;
- the suitability of the sentence to the young person;
- if appropriate, the need to ensure that the young person is aware of their responsibility for any action of theirs against the law; and
- if appropriate, the need to protect the community or any person from the violent or wrongful acts of the young person.
The police may also make a submission about sentencing (s.358(1)(e)). The young person (or their lawyer) should tell the Magistrate if they disagree with what the police say. The Magistrate may also take into account a victim impact statement (s.359).
Before deciding what order to make in the Criminal Division, the Magistrate may adjourn the case and ask for a report. This may be prepared by a DHS Youth Justice regional worker or the Children's Court Clinic (s.571 CYFA).
Reports usually take between three and six weeks to prepare, during which time the young person may be allowed to go home, although some bail conditions may be set. A young person who is to stay in custody will be taken to a remand centre.
Under the CYFA, a pre-sentence report can only set out sources of information, circumstances of the current offence(s), any previous sentencing order involving the DHS, and the family circumstances, education, employment history, recreation and leisure activities, and medical and health matters regarding the young person. Any statement in the report must be relevant to either the offence or the recommended sentence (s.573).
The young person is entitled to see the report (at least four working days before the hearing and, in any event, no later than 21 days after the report was ordered), unless the writer of the report thinks that information in the report may be prejudicial to the physical or mental health of the young person (s.575(2)). The young person's lawyer is always entitled to read the report. In practice, it is necessary to apply to the court to have a report prepared by the Children's Court Clinic made available. The young person may require the writer of the report to attend court to be cross-examined (s.550).
After all the evidence and the pre-sentence report (if any) have been considered, the Magistrate may take one of the following courses of action.
- Without conviction, dismiss the charge. This usually only happens if the offence is a trivial one or if there are special circumstances.
- Without conviction, dismiss the charge upon the young person giving an undertaking for up to six months or, in exceptional circumstances, 12 months, to do, or not to do, the acts specified in the undertaking. If the young person breaches this undertaking, there is no consequence.
- Without conviction, dismiss the charge upon the young person giving an accountable undertaking for up to six months or, in exceptional circumstances, 12 months. This undertaking can be breached.
- Without conviction, place the young person on a good behaviour bond for a period not exceeding one year but not exceeding 18 months if the young person is 15 or over and the circumstances are exceptional. The bond involves an amount of money less than half of the maximum possible fine and a promise to be of good behaviour and to attend court further if required. There may be other conditions. If a bond is breached, the young person may be required to pay the amount of the bond or be further dealt with on the original charge(s).
- With or without conviction, impose a fine. If the young person is under 15, a fine cannot be more than $100 for one offence or $200 for more than one offence. If they are 15 or over, the corresponding amounts are $500 and $1,000 respectively. In imposing a fine, the Magistrate must consider the financial circumstances of the young person. An instalment order may be made for payment of the fine. If the young person does not pay the fine, the Magistrate may give them more time to pay; vary the instalment order; order that the Sheriff seize property of the young person; release the young person on a probation order or youth supervision order for a period of not more than three months or order the fine be enforced.
- With or without conviction, place the young person on probation for up to 12 months or, if the offence is serious, up to 18 months. A probation officer is appointed to supervise a young person. The young person must report to the probation officer as required and obey the probation officer's reasonable directions. There are also other conditions of probation, such as the requirement to be of good behaviour. The probation officer should be seen as someone whose job it is to assist the young person, but who has the power to take the case back to court to breach the order. A probation order may extend to the young person's 21st birthday.
- With or without conviction, place the young person on a youth supervision order. The time limits are the same as those for probation, but a youth supervision order involves more intensive supervision than probation and may include community work as directed by the DHS. The youth supervision order may be breached for failure to comply with conditions.
- With conviction, place a young person over 15 years but under 19 on a youth attendance order for up to 52 weeks. A Magistrate can only impose a youth attendance order if they would otherwise be considering a period of detention in a youth training centre. The order involves attendance at a youth attendance project for up to 10 hours per week (up to four hours may involve community service work). A breach of a youth attendance order usually results in a custodial sentence. A youth attendance order can now also extend to a young person's 21st birthday.
- With conviction, sentence a young person under 15 to detention in a youth residential centre. The Magistrate must be satisfied that the circumstances and nature of the offence(s) are serious and that no other sentence is appropriate. A youth residential centre sentence cannot exceed one year for a single offence, or two years for multiple offences. The youth residential centre for both young men and young women is now located at Parkville.
- With conviction, sentence a young person over 15 years to detention in a youth training centre for a maximum of two years for one offence and three years for multiple offences. The Magistrate must be satisfied that no other sentence is appropriate. The youth training centre for young men is Melbourne Youth Justice Centre, in Parkville. The youth training centre for young women is also in Parkville.
A Magistrate must not impose a sentence unless satisfied that it is not appropriate to impose a lesser sentence in the sentencing hierarchy under the CYFA (s.361).
Before finalising the matter, the Magistrate may, with the consent of the young person, adjourn the hearing, usually for about six weeks, for a Family Group Conference. Family Group Conferences are attended by the young person, usually the young person's lawyer, significant family members, police and sometimes the victim(s). Participation in a Family Group Conference usually results in the young person receiving a more lenient outcome. The young person should speak to a lawyer about whether a Family Group Conference would be appropriate. Family Group Conferences are now available statewide.
A further alternative disposition available is the Ropes Program, which was established on a trial basis in 2003 as a diversion scheme for first time offenders appearing in the Children's Court. The program is now available at most metropolitan courts. A young person who seeks to participate in the Ropes program will first need to obtain the consent of the informant, to whom an approach is usually made through the young person's solicitor. Police will only agree to Ropes if the young person has admitted the offence.
An informant who consents to Ropes will need to sign a form that is then forwarded to the regional Ropes co-ordinator, who arranges for the young person's participation in the program. The court will usually grant an adjournment of charges for a young person to participate in Ropes. In most cases, the informant will attend the program with the young person; however, if the informant is unable or unwilling to participate, a police volunteer may take his or her place. The program lasts for a day and involves group discussions followed by partnership activities linking offenders with police officers. At the end of the day, the young person and his or her partnered police officer participate co-operatively in a high elevation Ropes course.
Police will generally withdraw all charges against a young person following the successful completion of the program. A certificate of completion is forwarded to the court. The vast majority of young people who have participated in the ROPES program do not re-offend.
If the Magistrate feels that it is in the young person's best interest and the young person agrees, the Magistrate may defer sentencing for up to four months (s.414).
If, in the course of hearing a criminal matter, the Magistrate considers that there is evidence:
- to form the basis of a protection application; or
- to suggest that a therapeutic treatment order is necessary,
the Magistrate may refer the matter to the DHS, who must inquire into the matter and report back to the court (s.349). A protection application or an application for a therapeutic treatment order may be lodged in the Family Division of the Children's Court.
If another person’s property was damaged or not recovered as a result of an offence, the Magistrate may order that the young person pay compensation or make restitution to a maximum amount of $1,000 (s.417). In doing so, the Magistrate must take into account the young person’s financial circumstances.
In indictable cases, the young person (or, in limited circumstances, the parent) may decide it would be better to have the case decided by a Judge and jury in a higher court. The case will first be listed in the Children's Court, or possibly in the Magistrates' Court if there is an adult co-accused, for a committal hearing. The object of committal proceedings is for the Magistrate to decide whether there is enough evidence to support a finding of guilt against the young person. If so, the Magistrate will commit the accused for trial.
At trial, the evidence will again be heard, but a jury will decide whether or not the young person is guilty. Very few young people are committed for trial to a higher court. The Children's Court regularly hears and finalises charges of serious assault, robbery and rape.
A Magistrate can decide, against a young person's wishes, that a matter should proceed as a committal, but only if exceptional circumstances exist. In the case of A Child v A Magistrate of the Children's Court and Ors (unreported, 24 February 1992), a Supreme Court Judge decided that the importation on three occasions of a large amount of heroin by a 16-year-old amounted to "exceptional circumstances". However, he said that the Children's Court should only give up its jurisdiction "with great reluctance", and he defined exceptional as "very unusual".
In committal proceedings, it is usual for only the prosecution evidence to be given. The young person, or their lawyer, will be allowed to question the prosecution witnesses. This should be done if it is felt that the witnesses have not given evidence about everything that occurred. It is not usual for the young person or witnesses to give evidence at this stage, and this should not be done unless a lawyer has advised it.
If the Magistrate does commit for trial, a copy of a record of evidence (called "depositions") can later be obtained from the Director of Public Prosecutions (DPP).
If committed for trial, the young person may again ask for release on bail until the trial takes place. The Magistrate may grant bail or remand the young person in custody. Where an accused young person is in custody, the County Court tries to have the case heard as soon as possible, which means that it will normally be heard within a few weeks. It would probably take much longer if the young person is allowed to go free while awaiting trial.
If a young person believes that they have been wrongly found guilty, or that the penalty imposed is too harsh, an appeal can be made to the County Court against the Magistrate's decision (s.424 CYFA). If the decision has been made by the President of the Children's Court, any appeal must be made to the Supreme Court.
The Magistrate may be told at the court hearing that the young person wishes to appeal. The appeal must be made within 28 days. The appeal papers can be obtained from any court Registrar or from an officer of the institution where the young person is detained. It is preferable to obtain the papers at the court where the case was heard. The papers have to be signed and sometimes arrangements have to be made for bail.
The young person has to sign an undertaking to proceed with the appeal before an authorised person (usually a court Registrar). That person will advise the young person of the date set for the hearing of the appeal.
Copies of the Notice of Appeal have to be delivered or posted to the court where the case was heard, to the Registrar of the County Court and the informant (a person, usually the police officer, whose name appears on the summons or charge sheet). The court Registrar may arrange this. A young person who changes address after putting in a Notice of Appeal (or their lawyer) should write to the Registrar of the County Court notifying the change of address.
If a decision is made not to go on with the appeal, the informant, the DPP and the Registrar of the County Court should be informed as soon as possible, in the appropriate form.
The DPP may appeal to the County Court against a sentence if satisfied that an appeal should be brought in the public interest (s.427).
If the County Court replaces a non-custodial sentence with a custodial sentence, the young person may, with the leave of the Court of Appeal, appeal to that Court (s.430R).
A young person can appeal to the Supreme Court on a point of law (but cannot also appeal to the County Court) from a final order of the Children's Court (s.430P). In the event of such an appeal, the Supreme Court may make such order as it thinks appropriate, including sending the case back to the Children's Court for rehearing (s.430P(9)).
After the Magistrate has decided that a young person is to be detained in a youth justice centre, they will be taken to Melbourne Youth Justice Centre unless bail has been granted pending an appeal. The officers at the youth justice centre will then "classify" the young person. They will decide which section in the institution that young person should be placed in.
The CYFA provides (s.482(2)) that young persons detained in a remand centre, a youth residential centre or a youth justice centre are entitled to:
- have their developmental needs catered for;
- subject to section 501 receive visits from their families and their lawyers;
- have reasonable efforts made to meet their medical, religious and cultural needs;
- receive information about the rules of the centre and the respective rights and responsibilities of the staff and the young persons;
- complain to the Secretary of the DHS or the Ombudsman about the standard of care, accommodation or treatment; and
- be informed of the above entitlements.
During the term of the sentence, a trainee can be given a permit for temporary leave of absence to work, attend school, participate in a sporting or recreational activity, attend a hospital or medical appointment, attend a funeral, assist the police, seek work or live in specified accommodation (e.g. a hostel) (s.485). The young person must carry the permit at all times during the temporary leave.
The Youth Parole Board may order the release on parole of a youth trainee (s.458), and may at any time cancel that parole (s.460). If a young person is sentenced to more than three months at a youth justice centre for a further offence committed during parole, the Youth Parole Board may cancel that parole, even if the period of parole has ended (s.460(4)).
The Youth Parole Board has the power, if cancelling parole, to deduct the time or part of the time spent on parole (having regard to the extent and manner in which the young person complied with the parole order) in determining the unexpired portion of detention (s.460(7)).
The Youth Parole Board has the power to transfer a young person from a youth justice centre to prison in certain circumstances (s.467). In exercising its duties, the Youth Parole Board is not bound by the rules of natural justice (s.449). This means that, among other things, a young person does not have an automatic right to be heard or represented before the Youth Parole Board.
The CYFA also provides for a Youth Residential Board, which has similar powers to the Youth Parole Board, but in respect to young people in youth residential centres (ss.431–441; ss.454–457).
CAYPINS (Children and Young Persons Infringement Notice System) is a process by which the Children's Court can deal with unpaid infringement notices which, in respect of adults, are enforceable through the Infringements Court system (see: Chapter 4*4 Infringements and Fines).
Previously, when an enforcement agency such as Victoria Police or the Department of Infrastructure issued an infringement notice to a child and the penalty was not paid, if the agency wished to pursue the matter it was necessary for charges to be brought in the Children's Court and heard in the normal way by the President or a Magistrate. CAYPINS enables the agencies to enforce payment in the Children's Court as an alternative to proceeding by way of summons.
The aim of CAYPINS is to provide flexibility and discretion in decision making, taking into account a child's age and personal and financial circumstances, and to maximise the efficient use of resources of the court and agencies. The court Registrar has a significant role in the process.
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CRIMINAL CASES :: Last updated: Thu Jul 1st 2010