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Young People and the Police (WA)

When a young person in Western Australia is suspected of criminal offences, they must go through a similar process as an adult who is suspected of offences. However, when the suspect is under 18 there are extra safeguards that must be observed. This is because young people are seen as being especially vulnerable and susceptible to making mistakes. For this reason, a young person is generally required to have a responsible adult accompany them when attending court or being interviewed by the police. This article deals with young people and the police in Western Australia. 

Who is a responsible adult?

A responsible adult is generally the parent or guardian of the young person. It may also be another person who has responsibility for the child’s day-to-day care. Ideally, once the police have decided that a child is to be questioned or arrested in relation to alleged offences, a responsible adult should be contacted to support the young person through the police investigation.

If a responsible adult cannot be contacted in relation to a young person, an independent person may be called to be present while the young person is being questioned. An independent person is an adult who is not connected to the young person but who volunteers their time to ensure that young people coming into contact with the police are treated appropriately.

When young people appear in the West Australian Children’s Court in relation to criminal charges, they must always have a responsible adult attending with them.

Age of criminal responsibility

The age of criminal responsibility in WA is 10. This means that if you are 10 or older and you commit a criminal offence you can be charged, found guilty and convicted in court.

If a person aged between 10 and 14 is charged with offences, it is necessary for the prosecution to prove to the court that the young person understood that their actions were wrong. This means that it is necessary for the prosecution to rebut the presumption that a child under 14 is not criminally responsible, by proving that they knew the difference between right and wrong.

Where a young person is 14 or older, they can be held criminally responsible for their actions without the prosecution proving they knew the conduct was wrong.

Police procedures and young people

There is no legislation in WA requiring police to have a parent, guardian or independent person present when they are questioning a young person. However, the WA Police Commissioner has issued rules and orders to the police to the effect that wherever possible when a young person has been arrested or is being questioned in relation to an alleged offence, a responsible adult or independent person should be present.

When a young person is interviewed without an adult present, the admissibility of any confession made to police may be challenged on the basis that the confession was not made voluntarily. Whether a responsible adult or independent person ought to have been contacted will be considered in light of the young person’s level of independence and maturity, whether they were employed or living independently, and how close to 18 they were.

Notifying an adult

When the police decide to arrest and charge a juvenile with a criminal offence, they are required to contact a responsible adult and provide them with notice of their intention to lay a charge as soon as reasonably practicable. Notice may be given by telephone, or by police attending their address to advise that the young person is to be questioned and /or detained in police custody.

If police are not able to locate a responsible adult, they must find an independent person to take on this role. However, if it is inappropriate to give notice to an independent person, police do not have to comply with this requirement.

In some situations, police are not required to notify a responsible adult. This is not required where the young person was the driver of a vehicle or where the police have asked them for their details and the young person has failed to provide them.

Arresting a young person

Police have the power to arrest young people anywhere and at any time. A young person can be arrested at home, work, school or in the street.

Police should make it absolutely clear to a young person why they are being arrested. However, police are not required to use specific words to tell the young person that they are being arrested. They may say “I am arresting you”, or place their hands upon the person and say “You are under arrest”. In certain situations, the police may physically take control of the person and handcuff them.

When a person under 18 breaks the law, the police may choose to refer them to the Juvenile Justice Team instead of charging them and summonsing them to come before the Children’s Court. Whether this happens will depend on the circumstances.

If a young person is dealt with by the Children’s Court and found guilty, the magistrate will impose a sentence under the Young Offenders Act 1994. The court has the power to sentence young persons to a range of penalties, including fines, good behaviour bonds and periods of youth detention.

If you require legal advice or representation in a criminal matter or in any other legal matter, please contact Armstrong Legal. 

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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