Legal advice

Police interrogation

18.147 The vast majority of child defendants plead guilty to charges.[340] Legal advice early in the process is critical to ensure young people are not pleading guilty simply because of environmental pressures. It is common for young people to agree with police allegations simply to get out of police custody.[341]

18.148 Police can overwhelm young suspects particularly when a young person is being detained or questioned at a police station. Most State and Territory juvenile justice legislation acknowledges this inequality by requiring an independent adult to be present during interview if the evidence is to be admitted in court proceedings.[342] However, there is no common law right to have a lawyer present during police interrogation.

18.149 Under the Crimes Act an investigating officer must inform any person suspected of committing a federal offence that he or she may attempt to communicate with a legal practitioner prior to questioning and may arrange for that practitioner to be present during questioning. The officer must allow the practitioner reasonable time to get to the station before commencing questioning.[343]

18.150 The position varies in the States and Territories. In South Australia and Victoria children and adults both have a statutory right to have access to a legal practitioner prior to questioning.[344] In other jurisdictions a lawyer may be present during interrogation as an independent person.[345]

18.151 Evidence given by young people at focus groups around Australia suggests that police are not always co-operative about assisting children in custody to get legal advice. In Alice Springs young people claimed that police often try to scare them out of asking for a lawyer when they are being questioned, for example, by threatening them with a long detention in custody. Some police apparently tell young people that they will infer guilt from silence. One girl was told there was no point getting her a lawyer as he or she would simply tell her not to say anything more.[346] Young people alleged that police intimidate them into giving confessions, for example, by conducting very long interviews.[347]

18.152 The Inquiry considers that young people should have a statutory right to confer with a legal practitioner prior to police interview and to have that person present during the interview. This would be consistent with article 37(d) of CROC, which gives detained children the right to prompt access to legal assistance and had strong support in submissions.[348] Children should certainly have access to legal advice before making any decision to admit an offence. Governments need to ensure that legal aid commissions are given sufficient funding to provide this service.[349]

18.153 In a 1991 case concerning a young person’s statutory right to contact a legal practitioner during police interrogation, the Victorian Court of Criminal Appeal held that the right arises from the point of arrest and is a continuing right that may be exercised more than once at any subsequent time.[350] The Inquiry supports this interpretation.[351]

Recommendation 226 The national standards for juvenile justice should provide that a child suspected of committing an offence should have a statutory right to access legal advice prior to police interview and that police must inform young people of this right at the time of apprehension. Duty solicitor schemes should be appropriately resourced to enable practitioners to meet with their child clients before the first court appearance.

After charge

18.154 Young people should also have adequate access to legal advice during any bail applications,[352] during the period leading up to their first court appearance and in court.

18.155 Most young people are represented by duty solicitors attached to the children’s court. Duty solicitors are either legal aid lawyers or members of the private profession who are contracted to provide the service by the relevant legal aid commission.[353] Currently, duty solicitors often do not have the opportunity to take adequate instructions from children. Generally the first time they have contact with a child is on the morning of the hearing. There are several reasons for this. Many young people do not realise that they are entitled to seek legal advice prior to a court appearance and would be well advised to do so. Duty solicitors generally do not have the time to seek out children before the hearing. Some commentators consider that the low status traditionally accorded to children’s work impedes the effective representation of young people in criminal matters.[354] It can also affect the resources allocated.

18.156 The duty solicitor scheme should be supplemented by a 24 hour freecall youth legal advice telephone service in each jurisdiction. The service could be linked to the more general youth advice telephone service proposed at recommendation 11. It should be staffed by practitioners with specific training in children’s matters.[355] The service should be advertised through wallet sized cards distributed through schools and youth centres and through a special Streetwize comic.[356] The availability of specialised legal advice in this way should greatly improve children’s understanding of their legal rights and responsibilities while also reducing some of the demands on duty solicitors.

18.157 Some government and police submissions opposed the establishment of a youth advice line on the basis that it would be too costly.[357] The savings to legal aid and the long term savings to the community that will arise from a better informed youth population should outweigh this concern. The proposed youth telephone advice service is supported by a number of community and peak groups and by young people.[358]

Recommendation 227 Confidential legal advice, with the capacity for trained interpreter assistance, should be available to young people 24 hours a day through a freecall youth telephone advice service. This service should be staffed by practitioners with specific training and experience in dealing with children’s matters.

Implementation. The Attorney-General should seek the agreement through SCAG of all States and Territories to the immediate establishment of such a service in each jurisdiction.

[340] ‘…from the available statistical evidence it is clear that, typically, children’s hearings proceed by way of a guilty plea…’: N Naffine ‘Children in the Children’s Court’ (1992) 6 International Journal of Law and the Family 76, 85; C Cunneen & R White Juvenile Justice: An Australian Perspective Oxford University Press Melbourne 1995, 218–219.

[341] See eg Community Legal Centres Minutes of Meeting Melbourne 28 May 1996.

[342] See para 18.104.

[343] s 23G(1)(b).

[344] Summary Offences Act 1953 (SA) s 79A(1)(b)(i); Crimes Act 1958 (Vic) s 464C(1)(b).

[345] eg Children (Criminal Proceedings) Act 1987 (NSW) s 13(1)(a)(iv).

[346] Alice Springs Focus Group 19 July 1996.

[347] Darwin Focus Group 15 July 1996.

[348] eg Parliamentary Commissioner for Administrative Investigations IP Submission 41; Youth & Family Service IP Submission 158; Disability Services Office IP Submission 205; Law Society of NSW IP Submission 209; Townsville Community Legal Service DRP Submission 46; Qld Police Service DRP Submission 56; Juvenile Justice Advisory Council of NSW DRP Submission 53; NSW Ombudsman DRP Submission 80; NSW Youth Justice Coalition DRP Submission 91. cf NT Government DRP Submission 71.

[349] See National Legal Aid DRP Submission 58.

[350] Shaw v R (1991) 57 A Crim R 425, 447.

[351] See D Sandor DRP Submission 30.

[352] See para 18.165.

[353] In some other Australian jurisdictions, such as family law, there are training prerequisites for legal practitioners: see para 13.130.

[354] See eg N Naffine ‘Children in the Children’s Court’ (1992) 6International Journal of Law and the Family 76, 86–88.

[355] Such a service could be achieved by expanding the telephone advice function of the various legal aid commissions: Legal Aid & Family Services, Attorney General’s Dept DRP Submission 83. Additional funding to these bodies would be required.

[356] See fn 69 above.

[357] Qld Police Service DRP Submission 56; WA Ministry of Justice DRP Submission 73.

[358] eg Townsville Community Legal Service DRP Submission 46; Juvenile Justice Advisory Council of NSW DRP Submission 53; National Children’s and Youth Law Centre DRP Submission 59; Federation of Community Legal Centres (Vic) DRP Submission 72; NSW Youth Justice Coalition DRP Submission 91; Tranby College Focus Group 10 June 1997.