Youth Justice Courts
Youth Justice Courts are generally closed courts. The press and all members of the public are generally excluded from the courtroom. In any particular case the only people usually present in a court when an individual case is being dealt with are:
- the Magistrate;
- the Magistrate’s Clerk;
- a security guard in uniform on duty at the courtroom door;
- a police prosecutor (a plain clothes police office) in criminal matters;
- a representative of the Department of Health and Human Services;
- the child;
- the child’s guardian or guardians;
- the child’s legal representative (if the child is represented); and/or
- the legal representatives of the child’s guardian or guardians.
In practice, other solicitors representing other children or guardians also remain in the courtroom waiting for their cases to be called on. Under section 30 the witness, victim, persons engaged in professional study or other persons that the court permits, in the interests of justice or to assist in the case, may also be present.
The court has a duty to ensure that the youth before the Court and the youth’s guardian, if present, understands the nature and purpose of the proceedings, and the right of the youth to have legal representation. It must ensure that the youth understands their rights in relation to entering a plea and the consequences of entering a plea and that they have access to copies of any report, or record of previous offending history, relating to the youth and that they understand that they can comment on any such report or record. The Court must also ensure that the youth has the right to make, and knows the importance of making, a plea in mitigation if the youth is guilty of the offence. The Court must respect the cultural identity of the youth.
The Youth Justice Act 1997 (Tas) requires young offenders to be given appropriate treatment, taking into account their social and family background, cultural identity, age, and maturity.
The rules of evidence that apply in the Magistrates Court (Youth Justice Division) are the same as if the person were an adult, being tried in the Magistrates or Supreme Courts. It should also be noted that evidence obtained through questioning the youth in the absence of a lawyer may be inadmissible in court.
The Court Hearing
Where community conferencing or a formal caution is not being used, the child may appear in the Youth Justice Court. The procedure in the Magistrates Court (Youth Justice Division) is governed by the Justices Act 1959 (Tas) except where inconsistent with the Youth Justice Act. The procedure is different depending upon whether the plea is one of guilty or not guilty.
Plea of ‘Guilty’
The first court appearance is on an appointed day. If a pre-sentence report is available, a court will often dispose of the matter on that same day. Otherwise the matter will be adjourned to another date on which day the report will be available. The length of time it takes to obtain a report can range from 4-6 weeks. The following is the usual order of events. The name of the youth is called outside the court, usually by the court security guard.
The youth and their parents go into court. The magistrates clerk identifies the youth for the magistrate, and if the youth is unrepresented who the accompanying adults are. If the youth is represented, or if the parents are represented, the lawyer will advise the magistrate that they appear for the youth and identity the other adults present. The youth is at all times after the initial identification by the magistrate’s clerk referred to and addressed by their first name.
The charge is read, usually by the magistrate’s clerk, and the youth is asked if they plead guilty or not guilty. The parents or guardians present may also be asked if they agree with the plea that the youth wishes to enter to the charge.
The prosecution reads out the police statement of facts and surrounding circumstances of the offence. If there is anything in the statement with which the youth disagrees, they should say so when given the opportunity to speak by the magistrate. It is important to listen carefully to this part of the case. If any of the police facts are disputed by the youth, and the prosecutor wishes to prove the police version, then the matter will have to be adjourned to another day for the hearing of oral evidence from witnesses on the disputed facts. If the prosecution does not wish to prove the police version of disputed facts, then the court will accept the youth’s version unless it is clearly unbelievable.
The magistrate is also given a list of the youth’s prior convictions, if any. This list is first of all shown to the youth and their parents or guardian. If there is any disagreement with the details of this list of prior convictions the prosecutor should be told immediately. Unless they choose to apply to the court to call evidence (which will take place on another day) to prove the disputed prior conviction, they will tell the magistrate to disregard the prior convictions that are disputed, and will usually mark with a pen those convictions in question.
The Court can request that the Department of Health and Human Services provide a pre-sentence report on the youth. The magistrate may consider this report. It is mandatory, in cases where more severe penalties are likely to be applied, that the magistrate has such a report. Reports can take several weeks to be put together and can contribute to delays in sentencing. The new section 33AA will speed the process in that oral pre-sentence reports can now be delivered in court.
Both parents and the youth should be given knowledge of the contents of the report before appearing in court by the child welfare officer who prepares the report. If there is anything contained in the report with which either the youth or the parents or guardian disagree then the court should be advised of those areas of disagreement. If the youth and/or parents or guardians are represented, then the legal representative involved will be given the opportunity to read the report. The lawyer will ask the youth and/or parents or guardians as to any areas of dispute with the contents of that report. It may be necessary for oral evidence to be given before the court (on another day) to resolve such disputes.
The magistrate then asks the youth or their parents or guardians whether they have anything to say. (If the youth is represented this is the job of the lawyer). This is the opportunity to tell the magistrate if there are any extenuating circumstances, for example, the youth was led into the offence by older persons, or they were having difficulties at home or school. The youth can also tell the magistrate that they are sorry for breaking the law.
After considering all the material, the magistrate passes sentence. The various orders the magistrate can make have been set out in Sentencing Orders.
Plea of ‘Not Guilty’
If the youth pleads not guilty, the procedure is longer and more complicated. On the day of first appearance the plea of not guilty is entered and the matter is adjourned to another day for hearing. On that hearing date, all police witnesses will be present, and the youth should have all of their witnesses present. The procedure for the hearing is exactly the same as it is for adults in the Magistrates Court.
If a youth is charged with a serious indictable offence, it may be one that only the Supreme Court can deal with. But in many such cases, the youth as an election (a choice) to have it dealt with in the Magistrates Court. If it is a case that only the Supreme Court can deal with, then after pleading not guilty, the case goes to the Supreme Court and may come back to the Magistrate Court for “preliminary proceedings” where the case against the youth can be tested before being finally heard in the Supreme Court. Legal advice should be obtained before any decisions are made to either go to the Supreme Court or about whether to have preliminary proceedings. See generally, Youth Justice Act 1997, section 3 definition of ‘prescribed offence’ s161 ‘jurisdiction of Court ‘; and Justices Act 1959 Part VII.
- may be admitted to bail (with or without conditions such as reporting at intervals to a police station);
- may be remanded in the care of the Secretary of the Department of Health and Human Services, who will then place the child in Ashley Detention Centre;
- may be remanded in custody in jail;
- may be allowed simply to leave the court having been advised of the date of their next appearance (this is usually referred to as ‘the matter having been adjourned without notice’).
Reports come from several sources. Youth Justice Worker Reports are usually prepared after the worker has visited the home and talked to the youth and their parents, and perhaps also schoolteachers.
Occasionally with youths 15 and over, reports are sought from the Youth Justice Service especially where community service orders and/or supervised probation is being considered as part of the sentence to be imposed on the youth.
Occasionally psychiatric reports are sought, as are reports under the Alcohol and Drug Dependency Act 1968 where alcohol or drug dependency/abuse appears to be a problem and a consideration in the committing of an offence by the youth.