This article was written by Samira Ashkar - Senior Associate - Sydney
Samira holds a Bachelor of Laws and a Bachelor of Science (Psychology) from the University of Wollongong. She also has a Masters of Dispute Resolution from the University of Technology Sydney and has completed a Graduate Diploma in Legal Practice. Samira is admitted as a solicitor in New South Wales but is also highly experienced in Australian federal law areas...
Young People and the Police (NSW)
In New South Wales, a young person aged 10 or older can be arrested and charged with a criminal offence. The process of being arrested is very similar for adults and young people; however, the police are required to take extra precautions when dealing with young people. Many of these precautions are connected to the way the young person is interviewed and dealt with once the charge has been laid. This article looks at the ways young people are dealt with by police in New South Wales.
Arresting young people
As with adult offenders, the police must have a reasonable suspicion that a young person has committed a crime before they arrest them. The police can ask for a young person’s name and address and if they refuse to provide these, the police can charge them with an offence
Fingerprinting and photographing young people
If a young person is under 14, the police must have a court order to take their fingerprints or photograph. However, a young person aged 14 or older can have their photograph and fingerprints taken by the police in order to identify them without a court order.
A young person’s fingerprints and photographs will be destroyed if the young person is found not guilty of the offence.
Support person and interviews with police
A support person (usually a parent) must be present when the police interview a person under 18. It is important for the support person to be in attendance, to ensure the young person understands what is going on and that they are treated fairly. The support person is also there to make sure the young person’s rights are not breached.
The support person must be an adult who is not connected to the police. If the young person is under 14, their parent or guardian will be contacted. However, if the young person is over 14, they can choose who the police contact.
If the police wish to interview a young person. they must give them a caution. A caution is a formal warning that they do not have to take part in an interview and that anything they do say may be used against them in court. Interviews are only admissible as evidence if they are given voluntarily. This means that the person must not have been forced, pressured or tricked into taking part in any interview, the interview is not voluntary and will not be admissible as evidence. If the police interview a young person when they are intoxicated, drug affected, sick, injured, hungry or upset, or when they have not been properly cautioned, the interview is likely to be excluded from evidence.
Diversion
Under the Young Offenders Act 1997, the police may divert a juvenile offender away from court, by offering the young person a warning, a caution or by referring the matter to a youth justice conference. These diversionary options are only available if the young person has admitted the offence and consented to the matter being diverted. The diversionary options available in New South Wales are explained further below:
1. Warning
A warning can be given to a young person at any place. It cannot have conditions attached or additional sanctions imposed. Police can keep a record of the warning and also notify the young person’s parents.
2. Caution
A caution can only be given once a young offender consents to being dealt with by way of diversion and admits the offence.
In determining whether to deal with a matter by way of a caution, the police will consider how serious the offence is, the degree of violence involved (if relevant), the harm to any victim, and whether (and how often) the young person has been dealt with before.
When a young person is cautioned, a caution notice is given to them which outlines the nature, effect and purpose of the caution. The young person must sign this caution for it to become valid.
3. Youth Justice Conferencing
Either the Children’s Court or the police may refer a matter to Youth Justice Conferencing when a young offender has admitted an offence and consented to the holding of a conference. A conference brings juvenile offenders, their families and the victims of their offending together to discuss the offending and how people have been affected. The conference may result in an apology, reparations or the young person agreeing to take steps to avoid further offending.
In New South Wales, juvenile offenders will face the Children’s Court if their matter does not receive one of the diversionary options above.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.