In court


18.178 When young suspects face trial, they must be able to defend themselves properly if they are contesting a charge. No matter what their plea, they must be able to understand the proceedings. Factors that can contribute to a child’s level of comprehension are the physical environment of the court room, the approach of the prosecutor, defence lawyer and judicial officer, and the effective representation of the child.

Prosecutors in juvenile justice matters

18.179 Juvenile justice matters should be prosecuted by the DPP rather than police prosecutors.[406] The prosecutorial duty of fairness is of special importance.[407] In rural areas a prosecuting police officer usually travels on circuit with the magistrate. Replacing this person with a DPP officer would have minimal resource implications. Prosecutors should receive specialised training in children’s matters, particularly concerning the exercise of the discretion to withdraw charges in minor matters.[408] The views of the apprehending officer should be persuasive but not binding in such instances.[409]

Recommendation 230 The national standards for juvenile justice should require all juvenile justice matters to be prosecuted by the DPP.

Recommendation 231 All DPP staff who prosecute juvenile justice matters should be given specialised training in children’s issues particularly concerning the exercise of the discretion to withdraw charges in minor matters.

Understanding the proceedings

18.180 The Beijing Rules provide that criminal proceedings should be conducive to the best interests of the child and conducted in an atmosphere of understanding which will allow the child to participate in the proceedings and express him or herself freely.[410] Some magistrates and practitioners encourage a less formal atmosphere in children’s courts than in adult courts. However, the use of legal language and jargon limits children’s understanding of the proceedings and is likely to alienate children appearing in the court.[411] This is particularly acute in serious indictable matters, such as murder and sexual assault, which are heard in superior courts.

18.181 In NSW and Queensland legislation provides that children before a court have the right to participate in decisions that affect them.[412] In the ACT and Victoria courts are required to make sure children understand the nature and purpose of the proceedings.[413] There are no similar provisions in the other States and Territories. Some young people consider that they are not given enough opportunities to talk in their own defence in court.[414] This view is supported by a number of commentators.

Children’s hearings still proceed much as they have always done: as modified, summary courts of justice. Passivity rather than participation characterises the young defendant.[415]

18.182 One way of increasing children’s comprehension of criminal proceedings and their ability to participate in them meaningfully is to ensure appropriate and early legal representation for them.[416] Another way may be to give them an entitlement to a support person in court. Young people in the focus groups favoured this option.[417]

18.183 A pilot children’s court assistance scheme was run at Lidcombe Children’s Court in NSW between July 1995 and April 1996. The scheme aimed to provide emotional support to child defendants as well as information about the trial before, during and after the proceedings. These kinds of schemes have been found to be effective in increasing children’s understanding of proceedings.[418] Ideally they should be expanded to all courts that hear children’s criminal matters. The Inquiry recognises that there are funding ramifications in such a proposal but considers the benefits justify the fairly minimal costs.

18.184 Young Indigenous suspects may be particularly vulnerable in the court room because of cultural differences in methods and styles of communication.[419] Judicial officers hearing matters involving Indigenous young people, either as defendants or witnesses, should take particular care to ensure that all questions put to the child are appropriate and comprehensible. For example, multiple subordinate clauses and double negatives should be avoided.[420]

Recommendation 232 The national standards for juvenile justice should require each jurisdiction to evaluate the need for court support schemes.

Recommendation 233 The judicial training proposed at recommendation 236 should include material on ensuring Indigenous witnesses understand juvenile proceedings and can participate in them effectively.

Court design

18.185 During consultations young people indicated that the physical environment of the court can be highly intimidating.[421] There is a certain symbolic and deterrent value in the formal court environment but it should not be threatening or overwhelming. The physical court environment affects the child’s demeanour and can thus affect the outcome of the case, particularly if the child feels intimidated into silence.[422] This adversely affects the child’s right to a fair trial.

18.186 Difficulties with court design are particularly acute in rural and remote areas where children’s criminal matters are often heard in courts built to accommodate indictable adult trials.[423] The community has also often outgrown its court facilities. In Wagga Wagga in rural NSW, for example, practitioners complain that they are unable to take proper instructions from children because of the shortage of conference rooms. Often the only place to confer is on the front steps of the courthouse.[424]

18.187 In many regional areas and indeed in some capital cities, children’s criminal matters and care and protection proceedings are heard in the same court room. This arrangement has negative consequences for both groups of children. Young offenders are often exposed to angry outbursts by families involved in care proceedings who are under emotional stress. Children who are the subject of care proceedings may get the impression that they have done something wrong as a result of the association with young offenders.[425] The Inquiry considers that judicial and court officers should make every attempt to separate care and juvenile justice matters when scheduling hearings. For example, if there is only one care matter listed it should come on first thing in the morning. There could also be separate days for hearing the different categories of matters.

18.188 Several submissions considered inappropriate court room design a significant factor contributing to children’s poor understanding of legal proceedings.[426] A former senior children’s magistrate has suggested that ideally a court room used for hearing criminal charges against children should be of a size that enables all persons involved to address each other at a normal conversational level, have a bench that distinguishes the role of the magistrate but that does not dominate the room by its height, size or ornateness and be carefully laid out so that there is a clear line of sight between the bench and all others.[427]

18.189 Court design is also important in terms of the facilities available when the child is not required in the court room itself.[428] Young people often have to wait hours for their matter to come on. They, and their families, should be able to do so in a calm, reasonably private environment.[429] It was recently reported that the Melbourne Children’s Court facilities are so inadequate that lawyers are advising children to use the casino across the road as a waiting area.[430]

18.190 The Inquiry considers that, in conjunction with the relevant State and Territory authorities, OFC should develop guidelines to be used when new children’s courts are established and existing facilities are modified. These guidelines should ensure that court rooms and waiting areas are designed and modified with the needs of child witnesses and defendants in mind. In particular, attention should be given to providing sufficient private interview rooms and ensuring that court rooms are small enough for communication at normal conversational level.[431] Providing a court room can be adapted to be suitable for children’s matters there is no need for it to be a designated juvenile forum.

The building of specialist court facilities may not always be possible in the smaller centres, where court buildings and court rooms have to be multi-functional. However, the concept of using guidelines for new buildings, or renovations, is valid.[432]

Recommendation 234 Guidelines for juvenile court design, to be used when new courts are established and existing facilities are modified, should be developed.

Implementation. OFC should develop these guidelines in conjunction with relevant State and Territory authorities.

Training for decision makers

18.191 The Beijing Rules provide that professional education, refresher courses and the like should be used to ensure that all personnel dealing with juvenile cases maintain the necessary professional competence.[433] The Rules also provide that efforts should be made to ensure the representation of women and minorities among these personnel.[434]

18.192 Every State has a specialised children’s court that hears matters involving federal and other juvenile offenders.[435] In non-metropolitan and remote areas and in the ACT and the Northern Territory, juvenile crime matters are generally heard by the generalist magistracy sitting as a children’s court because of a shortage of resources. There was a great deal of support in submissions to the Inquiry for a specialised children’s magistracy.[436] Recommendation 130 proposes a specialised family and children’s magistracy to hear family law, care and protection and juvenile justice matters. Under the proposal, this magistracy would work on circuit in rural and remote areas.

18.193 The UN Committee on the Rights of the Child has emphasised the need for systematic training activities for professional groups working with or for children in the area of the administration of juvenile justice. These groups include judges, lawyers, social workers, law enforcement officials and immigration officers.[437]

18.194 Whether or not a specialised children’s magistracy is introduced in all jurisdictions, there should be a core training program for magistrates hearing juvenile justice matters including communications skills, child development, Indigenous culture, juvenile justice procedure and the structural causes of offending. In particular, they should be trained to avoid the use of legal jargon and acronyms and to improve effective communication, for example, by asking the young suspect whether he or she would like to explain what was happening during the proceedings.[438]

18.195 To ensure that there is there is continuity in the expertise applied to juvenile justice matters, courts of appellate jurisdiction should designate judges to hear appeals in juvenile justice matters. These judges should undertake the training proposed above.

Recommendation 235 Juvenile justice data provided to OFC by the States and Territories in accordance with recommendation 193 should provide a breakdown as to whether a decision was made by a specialist children’s magistrate or by a generalist magistrate and be matched with the type of order made in each case.

Recommendation 236 In addition to training already provided, all magistrates and judges who hear juvenile justice matters should receive specialised training. The training should include components on matters such as communications skills, child development, Indigenous culture, juvenile justice procedure and the structural causes of offending.

Implementation. In conjunction with other judicial education bodies, AIJA should develop a core national syllabus for training judicial officers who hear juvenile justice matters.

Recommendation 237 Courts of appellate jurisdiction should designate judges to hear appeals in juvenile justice matters. These judges should undertake the training proposed at recommendation 236.

[406] The Inquiry understands that it is proposed that the NSW DPP take over all summary prosecutions in that State, including juvenile justice matters.

[407] D Sandor DRP Submission 30.

[408] In South Africa there is no formal legislative framework for diversion of juvenile offenders and the chief mechanism is withdrawals of charges by prosecutors: South African Law Commission IP 9 Juvenile Justice South African Law Commission Pretoria 1997, 34.

[409] See N Naffine & J Wundersitz ‘Negotiating justice in the Children’s Court’ (1991) 2(4) Criminology Australia 21.

[410] r 14.2.

[411] NSW Ombudsman DRP Submission 80. See also paras 4.20-22, 14.110-115, 19.81-87.

[412] Children (Criminal Proceedings) Act 1987 (NSW) s 12; Juvenile Justice Act 1992 (Qld) s 58(2).

[413] Children’s Services Act 1986 (ACT) s 6; Children and Young Persons Act 1989 (Vic) s 23 although this is limited to ensuring that the child understands orders made by the court.

[414] eg Perth Focus Group 1 July 1996. See also para 4.24.

[415] N Naffine ‘Children in the Children’s Court’ (1992) 6International Journal of Law and the Family 76, 90. For an overview of the changing role of children’s courts see J Seymour ‘Children’s courts in Australia: Their current role and functions’ in A Borowski & I O’Connor (eds) Juvenile Crime, Justice and Corrections Longman Sydney 1997.

[416] See rec 227.

[417] Hobart Focus Group 30 May 1996; Rockhampton Focus Group 2 August 1996. See also Central Australian Aboriginal Child Care Service Public Hearing Submission Alice Springs 18 July 1996.

[418] Marrickville Legal Centre IP Submission 221.

[419] See paras 18.114-115.

[420] See D Mildren ‘Redressing the imbalance against Aboriginals in the criminal justice system’ (1997) 21 Criminal Law Journal 7, 12–17.

[421] eg Darwin Focus Group 15 July 1996.

[422] G Cumes IP Submission 169.

[423] See Australian Association of Social Workers IP Submission 207.

[424] Wagga Wagga Practitioners’ Forum 9 May 1996.

[425] Children’s Welfare Association IP Submission 138.

[426] eg G Cumes IP Submission 169; Australian Association of Social Workers IP Submission 207.

[427] R Blackmore Children’s Court and Community Welfare in NSW Longman Cheshire Melbourne 1989, 40. See also R Sullivan Children in the Children’s Court: Youth Experiences of NSW Children’s Courts National Children’s and Youth Law Centre Sydney 1993 recs 7.17–7.18.

[428] Youth Advocacy Centre IP Submission 120; Burnside IP Submission 214.

[429] See M Forrester IP Submission 116. See also R Sullivan Children in the Children’s Court: Youth Experiences of NSW Children’s Courts National Children’s and Youth Law Centre Sydney 1993 recs 7.4–7.16.

[430] R Gibson ‘Court children use casino, says lawyer’ The Age 29 July 1997, A4.

[431] This proposal is supported by Townsville Community Legal Service DRP Submission 46.

[432] NT Government DRP Submission 71.

[433] r 22.1.

[434] r 22.2.

[435] Children’s Court Act 1987 (NSW); Children’s Court of Western Australia Act 1988 (WA); Children’s Court Act 1992 (Qld); Children and Young Persons Act 1989 (Vic); Child Welfare Act 1960 (Tas); Youth Court Act 1993 (SA).

[436] eg J Saunders IP Submission 21; Catholic Education Office IP Submission 38; Association of Heads of Independent Schools IP Submission 55; Children’s Protection Society IP Submission 108; Youth Advocacy Centre IP Submission 120; Fitzroy Legal Service IP Submission 126; Barwon Adolescent Taskforce IP Submission 188; Church Network for Youth Justice IP Submission 212.

[437] S Detrick ‘The theme day of the Committee on the Rights of the Child on the administration of juvenile justice’ (1996) 4 The International Journal of Children’s Rights 95, 97.

[438] This proposal is supported by Townsville Community Legal Service DRP Submission 46 and WA Ministry of Justice DRP Submission 73. See also Canberra Practitioners’ Forum 6 May 1996; R Sullivan Children in the Children’s Court: Youth Experiences of NSW Children’s Courts National Children’s and Youth Law Centre Sydney 1993 recs 7.23–7.26.