Children’s Court of NSW Resource Handbook — Practice and procedure, practice notes, guide and protocols

Children under 10 years are conclusively presumed to be incapable of committing a criminal offence: s 5 CCPA. Where a child is over 10 years old but under 14, there is a common law presumption of doli incapax. In such cases, the prosecution must prove beyond reasonable doubt that the child did the act charged and, when doing the act, knew it was wrong, as distinct from merely naughty or mischievous: RP v The Queen (2016) 259 CLR 641 at [9].

Judgments on doli incapax are located at [9-1140]ff.

Under s 13 of the CCPA, admissions are not to be admitted unless a parent, chosen support person or lawyer was present, unless the court is satisfied that there was a proper and sufficient reason for the absence of such an adult, and considers that, in the particular circumstances of the case, the statement or admissions should be admitted: s 13(1)(b) CCPA; R v Mercury [2019] NSWSC 81.

Judgments on admissions are located at [9-1020]ff.

The law permitting orders to be made to undertake forensic procedures on suspects applies to a child: s 3(1) Crimes (Forensic Procedures) Act 2000 (“CFPA”).

A child cannot consent to a procedure and a court order must be obtained: ss 7, 23 CFPA.

Where a child over 14 years old is in lawful custody for any offence, a police officer may take or cause identity particulars to be taken, including the child’s photograph, fingerprints or palm prints: s 136 Law Enforcement (Powers and Responsibilities) Act 2002 (“LEPRA”).

If the Children’s Court finds a child not guilty, or finds the offence proven but dismisses the charge, it is to make an order requiring the destruction of any photographs, fingerprints and palm prints relating to the offence: s 38(1) CCPA.

Judgments on forensic procedure are located at [9-1200]ff.

The Bail Act 2013 applies to any person accused of an offence (s 7(2)), including children. However, the show cause requirement does not apply if the accused was under 18 years old at the time of the offence: s 16A(3). The court must consider whether any of the unacceptable risks listed in s 19(2) are present before making a bail decision. When determining bail for a child, one of the factors to be considered in deciding whether there is an unacceptable risk is “any special vulnerability or needs the accused person has including because of youth”: s 18(1)(k).

Section 28 permits the court to make an accommodation requirement as a bail condition where the accused is a child: ss 28(1), 28(3). If an accommodation requirement is imposed in respect of a child, the court must ensure the matter is re-listed for further hearing at least every 2 days until that requirement is complied with: s 28(4). The court may require a report from an officer of a government agency about efforts to obtain accommodation, but does not permit a direction that the agency secures accommodation s 28(5). Magistrates should not require a young person to reside as directed by Youth Justice as a bail condition.

Unless a young person has pleaded guilty, Youth Justice will not supervise a young person as a condition of bail.

Judgments on bail are located at [9-1100]ff.

The court has no jurisdiction to deal with a “serious children’s indictable offence” to finality: ss 3, 17, 28(1) CCPA. Generally, if a child is charged with an offence (other than a serious children’s indictable offence) the proceedings are dealt with summarily: s 31(1).

See Div 3AA on child sexual assault offences.

See ss 31G and 31H on guilty pleas.

See generally, KT v R [2008] NSWCCA 51.

See also, s 6 CCPA, Principles relating to exercise of functions under Act.

Judgments on sentencing at located at [9-1340]ff.

The Children’s Court may utilise the YOA in three ways:

Children’s Court Practice Note 11 sets out the relevant processes regarding the Youth Koori Court (“YKC”). A referral to the YKC can only be made on the application of the young person. When the young person has entered a plea of guilty the presiding judicial officer will refer the case to the YKC if satisfied that the eligibility criteria are met.

To be referred to the YKC a young person must:

Judgments on YKC are located at [9-1380]ff. See Youth Koori Court [15-1000]ff for further information.

The Children’s Court is authorised to deal with such cases where the defendant is less than 18 years of age at the time the complaint is made: s 91(1) Crimes (Domestic and Personal Violence) Act 2007.

Special provisions apply to amend the meaning of domestic relationship as it applied to a young person and a paid carer: ss 5A and 5.

Section 41(4) provides that a child should not be required to give evidence in any manner about a matter unless the court is of the opinion that it is in the interests of justice for the child to do so. Also see s 41AA.

See Children’s Court Practice Note 8, which sets out Children’s Court procedures in cases where apprehended domestic violence or personal violence order proceedings have been commenced against a young person.

Judgments on apprehended violence orders are located at [9-1060]ff. See Apprehended violence orders [13-1000]ff for further information.

A court should not impose a fine which a person cannot pay: Rahme v R (1989) 43 A Crim R 81. The amount of the fine is relevant to the sentence imposed: Tapper v R (1992) 64 A Crim R 281.

Section 36(3) of the CCPA provides:

Part 4C of the CDCA confers jurisdiction on the Children’s Court to determine parole for young offenders: s 41(1). Parole determinations can be made by the President of the Children’s Court or a specialist Children’s Court Magistrate. If a child pleads or is found guilty on parole, the matter should be referred to the parole clerk at Parramatta Children’s Court.

Judgments on youth parole are located at [9-1360]ff.

Where a child’s school attendance is not satisfactory the Secretary of the Department of Education may apply to the Children’s Court for an order under s 22D of the Education Act 1990. The Children’s Court may direct a parent and/or child to attend a compulsory conference per s 22C of the Act.

See Compulsory schooling orders at [14-1000]ff for further information.