Review of Gatekeeping Role in Young Offenders Act


Barrier 7 - Police practices do not always conform with the procedural requirements of the Act or promote its principles, including the principle that young people should be informed about their right to obtain legal advice and to have an opportunity to obtain that advice

110. Some of the comments by YLOs and conference administrators on this issue were:

Young offenders legal aid hotline needs to be available 24 hours a day.

Legal Aid Hotline to be of use and to gain credibility needs to be 24 hours, 7 days a week with well trained staff.

Traditional rivalry between police and lawyers. How can this be overcome? Is it possible for YLOs to speak directly with legal aid hotline to gain satisfaction re quality of advice given rather than deliberate obstruction.

Concerns for 10-14 year olds being sent to court because of issues of dolli incapax. I have had a couple of kids in this age group referred to conference. These referrals have been rejected due to issues of dolli incapax not being dealt with properly in the police interview. These kids have then been summonsed to court. If these kids had been 14 plus the referrals would probably have been accepted.

Train the ALS to be able to be contacted when a young person from the Aboriginal Community comes into custody. At present in the Southern Rivers Region there are several numbers to contact, all of which at most times go unanswered or messages left on answering machines are never or rarely responded to.”

Procedures under the Act

111. There are several procedural requirements provided for in legislation and at common law which can affect decisions by gatekeepers. These include requirements in relation to legal advice, interviews, admissions and time limits. Many stakeholders expressed the view that police were not always doing everything they could to comply with these requirements. Examples included not encouraging young people to access legal advice and being more likely to charge a young person than release them if an appropriate adult could not be found to attend the interview. Police expressed concern if they release young people they may have difficulty locating them again.

Some of these issues relate to police policy and practice; others concern the availability of legal advice and other resources. While the latter is not within the terms of reference for this review, I will reflect back some stakeholder concerns and ideas on these issues.

Legal advice

Statutory requirements re legal advice

112. The Act contains the following principle at s 7(b):

The principle that children who are alleged to have committed an offence are entitled to be informed about their right to obtain legal advice and to have an opportunity to obtain that advice.

The principle is embodied in two sections of the Act. The first requires an investigating official to explain to the child that he or she is entitled to obtain legal advice and where that advice may be obtained prior to arranging for a caution to be given. S 22(1)(b) The second places an obligation on an SYO to provide the same advice to the child prior to referring the matter for conference. S 39(1)(b)

There are also requirements in the Crimes Act 1900 in relation to people who have been taken into detention after arrest for purposes of investigation. Custody Managers must advise the person of their right to contact a lawyer. Crimes Act 1900 S 356N(2)

Availability of legal advice generally

Written advice

113. The Police Service has prepared a document to give to people summarising their rights. It is currently being reviewed, to determine if a further paragraph can be added informing young people about the Legal Aid Hotline. According to some stakeholders, this document is hard to read, and not well set out.

Telephone advice

114. A free Hotline has been established by the Children’s Legal Service of the Legal Aid Commission. It operates from 9 am to midnight on weekdays and 12 noon to midnight on weekends. It is available to young people and their carers, conference administrators and convenors. Other Legal Aid Commission staff are available to talk to police if they have questions or concerns.

115. Calls are taken by an information officer who determines who makes arrangements for the caller to speak to a children’s solicitor if appropriate. Data collected for the period from December 1998, when the service began, to May 1999 reveals that 626 calls were taken by information officers during that time. The number of calls per month has increased from 32 in the first month to 149 in May 1999. While everyone with whom I consulted acknowledged the benefits of the Hotline, there were several comments about it:

• police do not always advise young people that it is available to them;
• ATSI young people did not tend to use the Hotline as frequently as non-ATSI young people;
• it should be available 24 hours a day; and
• there is no substitute for face to face legal advice, especially for young people.

117. The questions of whether the hotline should be available 24 hours a day and whether there should be any targeted service for Aboriginal youth are not within the terms of reference for this review.

Face to face advice

118. Free face to face legal advice is not universally available to young people throughout NSW. There are specialist duty solicitors at Children’s Courts (four in Sydney) but, according to practitioners in the area, the roster system for private solicitors in rural areas doesn’t work as well. While these services provide legal advice to young people appearing before a court, they do not generally cover face to face advice prior to making a decision about admissions and whether to opt for a caution, conference or court proceedings.

119. The provision of face to face legal advice is expensive and would require a high level of commitment on behalf of the government and the legal community. Although it is beyond the terms of reference for this review, one suggestion was to have volunteer private solicitors, community legal centre solicitors or ALS solicitors on call to come to the police station if a young person requests, or would benefit from, face to face advice. If no solicitor is available the young person could be released to obtain legal advice when a solicitor is available. In this case, police could contact a solicitor who is “on call” and request that they contact the young person to arrange an interview.

RECOMMENDATIONS

The Police Service should ensure that the requirements in relation to legal advice are followed. Strategies which they may wish to consider include:

• re-drafting the document summarising young people’s rights so that it is easy to read and understand. Copies should be available at every police station. The document should be given to the young person and its contents explained.
• displaying the Hotline poster in a prominent position in every police station;
• setting out the obligations of police in relation to legal advice and mentioning the Hotline in the Police Service Circular in relation to the Act, and
• referring to the Hotline in all information circulated or broadcast to police in relation to the Act including training materials.

Availability of legal advice for ATSI Youth

120. There are 24 Aboriginal Legal Service Offices servicing the Indigenous communities of NSW, mainly in relation to criminal law and violence prevention. In 1996/97 NSW ALS s assisted over 15,000 Indigenous people, over a third of whom where children or young people. One serious difficulty for the ALS is that they are only funded by the Aboriginal and Torres Strait Islander Commission for court work. They are not funded to attend at police stations to provide advice. Again, it is beyond the terms of reference for this review but some suggestions made during the course of my consultations with stakeholders were that:

• cards with ALS contact details be provided in all police stations;
• negotiations should be commenced with ATSIC to fund ALSs for matters under the Act including telephone advice, face to face legal advice and attendance at conferences; and
• funding be obtained from the State government for solicitors to advise on the Act, attend conferences and give face to face legal advice.

Admissions and Interviews

Statutory requirements

121. An investigating officer or an SYO cannot make a decision to caution a matter or refer it for a conference unless the child admits to the offence. In addition, any admission must be made in the presence of certain specified adults. Section 10 states that:

An admission by a child of an offence is not an admission for the purposes of this Act unless it takes place in the presence of:

a person responsible for the child (defined as a parent or person who has the care of the child)

an adult (other than an investigating official) who is present with the consent of a person responsible for the child,

if the child is 16 years or over, an adult chosen by the child, or


a legal practitioner chosen by the child.

There is a problem when dealing by arrest. When a juvenile is arrested when he comes from out of town and has no local attachment, parent or otherwise. These people often take off and later cannot be located. We have done this on occasions and it then creates more work and time to take out warrants. What should we do?

Recently had one homeless kid charged simply because all attempts to get an independent person to sit in on interview failed. No one could be located. The kid was charged without being interviewed for an offence which, if admitted, could have been cautioned.

122. There have been cases where the young person cannot identify an adult or that person is too far away to attend. This is a particular problem with ATSI children who may live in extended family situations and/or be a long way from home. If an adult cannot be located, then two options are to charge the young person without an interview or release the person while an adult is found.

Requirement for admissions

123. There are often pros and cons of making admissions that a young person needs legal advice to identify. While a young person cannot access cautions or conferences unless he or she admits the offence, an admission may not be in the interests of the young person if:

• the young person has not committed the alleged offence or has committed a less serious offence; Several stakeholders expressed concern that police sometimes overcharge young people.
• the young person has an intellectual impairment or mental illness; In this case if they go to court they will be treated under Mental Health (Criminal Procedure) Act 1990.
• the young person is affected by alcohol or other drugs and any admission or record of interview is likely to be inadmissible;
• there are issues of doli incapax, This common law presumption assumes that a child between 10 and 14 years of age does not know that his or her criminal conduct was seriously wrong unless the contrary is proved by the prosecution. If the police are unlikely to obtain a conviction, lawyers may advise their client not to admit to the offence. or
• there is insufficient evidence for a prosecution to succeed.

124. For these reasons it is extremely important, though not a statutory or common law requirement, that the young person obtain legal advice (preferably face to face) before any admission is made. Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, (1997) Report No 84 Seen and heard: priority for children in the legal process, Alken Press Pty Ltd at 519 recommends 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 protects police as well as the young person because it avoids the situation where the matter cannot be proved because of the inadmissibility of certain evidence; for example in relation to an allegation that police induced a young person to make an admission or dolli incapax.

Time limits and “Cooling off” periods

Encourage ‘cooling off period’ between offence detection and decision on how to proceed.

Encourage more police to use the 21 day window/cooling off period when in doubt when dealing with juveniles

Police making decision in “heat of the moment.” 14 days does not seem to be utilised all that often.

Statutory requirements

Time in custody

125. Young people can only be held in custody by the police for a reasonable time before they must be dealt with under the Act, charged with a crime or released. Police must take into account a person’s age in determining what is a reasonable time. The time is generally no more than 4 hours. Crimes Act 1900 s356C, s356D

Time to make a decision about conferencing

126. Section 37(4) of the Act gives an SYO 14 days from receiving a referral from an investigating official to make a decision as to whether the child is entitled to have the matter dealt with by holding a conference. This period gives the SYO an opportunity, among other things, to encourage the young person to seek legal advice if he or she has not already done so.

Time limits for giving cautions and holding conferences

127. Another time limit relates to the period after a decision to caution or conference has been made and before the caution or conference takes place. In accordance with s 26(1) a caution must, if practicable, be given between 10 and 21 days after notice of the caution is given to the child. In accordance with s 43 a conference must, if practicable, be held within 21 days of the conference administrator receiving the referral and at least 10 days after notice of the conference has been given to the child. These time limits aim to ensure that cautions and conferences are held in a timely fashion and that the young person has adequate notice of the caution or conference.

Time for young person to change their mind

128. There are also provisions which allow a child to elect to have the matter dealt with by a court rather than proceed to caution s 25(1) or conference s 44(1) at any time before the caution is given or the conference is held.

Time limits for referral to SYO

129. There is no time limit in relation to the period by which police must refer a matter to an SYO if they decide against a caution. One suggestion was that police officers investigating a matter should be required to refer it to an SYO within 72 hours of first contact with the young person, unless they have already warned the young person or decided to give a caution. This would ensure that matters are dealt with quickly.

Confusion about “cooling off” periods

130. Several stakeholders referred to “cooling off” periods of varying lengths. There is considerable confusion about the statutory time limits imposed by the Act and their purpose. This issue should be addressed through training and guidelines.

Policy advice to police

131. In order to obtain face to face legal advice it will generally be necessary for police to release the young person and arrange for them to attend the police station on another date. The Police Service have advised their officers in the following terms:

Apart from contacting YLO or SYO if you have any queries about how to deal with a young person, you can actually discharge or release a young person to enable you to consult with a YLO. This means that if you are having difficulty deciding the most appropriate course of action, and you are confident that the young person will return at a later date to be interviewed, then you can release them with an undertaking that they will return. A standard form to be generated by COPS is currently being developed, which you can give to a young person who you wish to release, either for you to speak with a YLO or to enable the young person to obtain access to legal advice. Communications Strategy, Police TV Segment provided by Garner Clancy.

RECOMMENDATION

The Police Service should develop and distribute a protocol document to all relevant police officers describing best practice in relation to legal advice, obtaining admissions, interviews and statutory time periods. This document should include reference to situations where a specified adult or an SYO is not available.

This document should include consideration of any role which it may be appropriate for Aboriginal Community Liaison Officers (ACLOs) and Ethnic Community Liaison Officers (ECLOs) to play including assisting young people to obtain legal advice and ensuring that they return to the police station at a later date.

Administering cautions

132. The Act provides that cautions can be administered by a police officer or by a respected person from the community. Alternatively a community representative can be present when the caution is given. This person might, for example, be from the Aboriginal or Torres Strait Island community or the ethnic community of the young person. Many stakeholders expressed the view that for certain groups, including ATSI young people, cautions delivered away from the police station by a community member are more effective than those given by police in police stations. One suggestion was that Aboriginal Community Liaison Officers (ACLOs) be asked to help identify an appropriate community member in the Aboriginal community. Similarly, Ethnic Community Liaison Officers (ECLOs) could identify an appropriate leader from the particular ethnic community. While not strictly within the Terms of Reference for this review, the Police Service should encourage their officers to use community members for cautions in appropriate cases.