The Children’s Court of Western Australia: Appearing as an Accused

Being charged with a criminal offence can be a daunting and confusing experience for an adult, let alone for a child. From the age of 10 to 17, children can be arrested by the Police and charged with criminal offences.

As a parent to a child facing a criminal charge, you want to be sure that you have the best representation for them.

Questions that might immediately spring to your mind are…

Will the child receive a criminal record?
How will they get a job?
What kind of penalty is the child going to receive?
Will they go to jail?
What does a child need to bring to court?
Who needs to come with them to court?
What options are available to help the child combat issues that they are struggling with?

The Children’s Court jurisdiction is a very busy and complex environment. There is a lot of help available, but you need to know who to ask and what to ask for.

Many criminal charges brought against children in the Children’s Court can be dealt with quickly by way of informal punishment options by a Magistrate, but in some circumstances, it can be much more serious.

It may be the case that a child has been charged with a very serious crime or an allegation of a sensitive nature and there is a need for the matter to be referred to the President of the Children’s Court, who has the same powers as District Court judge or Supreme Court justice.

Arrest and Bail

After the arrest of a child, the Police may require them to participate in an interview about the alleged offending. Whilst the child is arrested, they will be given the opportunity to contact a lawyer to obtain legal advice. It is important that this is done before the interview takes place, even if this is outside of business hours. You can call us on our out-of-hours mobile phone number to receive legal advice.

Once the Police have made a decision to charge, the Police should provide the child with a copy of the Statement of Material Facts and the Prosecution Notice. This will inform you and your child of what it is that the child has been charged with and what the Police say happened.

The Police will then make a decision as to how the child is to be brought to court and this will usually occur in one of three ways:

The Police may issue a Notice to Attend Court, which will require the child to attend court on a specific day in the future;
The Police may release the child on bail with a requirement to attend court on a future date, with the undertaking of a responsible person (such as a parent or guardian) that the child will attend their court appearance; or,
The Police may decide to refuse bail, in which case the child will be kept in detention overnight and brought before a Magistrate the following day for the Magistrate to decide bail. If this is the case, a parent or guardian will also need attend court and make it known to the court staff that they are there.

If the child does not attend their court appearance, then there is a risk that an arrest warrant could be issued and they could be taken into custody.

Attending Court and entering a Plea

A parent or guardian should always accompany a child to court and the Magistrate will enquire as to who has come with them. In some circumstances, it may even be necessary for the Magistrate to speak directly to the parent or guardian.

At this court appearance, it is the child, not their parent or guardian, that will be asked by the judicial officer if they understand the charge and how they wish to plead to it – guilty or not guilty.

From that perspective, we urge you to ensure that the child has had an opportunity to seek legal advice with a lawyer who has the time to sit down, discuss the charges with them and answer any questions they may have.

Going to Trial

If a child has been charged with an offence that they say they are not guilty of, it is vital that they feel supported and justified in their decision to plead not guilty and to proceed to a trial.

The first step in proceeding to trial will be requesting that the Police provide a copy of the evidence that they have obtained to support their charge to the child or their lawyer. Once ordered by the Court to do so, the Police must provide this within 6 weeks.

After receiving the evidence, your lawyer will go through this with the child and make an assessment on the likelihood of conviction at trial. They will provide advice to the child and then it will be the decision of the child as to whether they want to proceed to a trial.

There are no juries in trials in the Children’s Court, but any court hearing can be intimidating if you have not been prepared well by your lawyer. There will be Prosecution witnesses giving evidence and you will need the support and expertise of a lawyer representing you. Your child may need to give evidence at trial, in which case, developing a rapport with their lawyer is essential.

In addition to proving the individual elements of the charge at a trial, the Prosecution is also required to prove that the child has capacity to understand that what they did was wrong. This may be of particular concern if the child you are concerned about is very young, has learning difficulties or other issues that may impact their ability to understand right from wrong.

Once the Magistrate or President has heard all of the evidence at the trial, they will then make a decision as to whether the child is guilty or not guilty. They will give full reasons and explain to the child why they have made their decision.

Sentencing

If a child is willing to accept responsibility for their offending, plead guilty or is convicted after a trial, then consideration will need to be given to the likely penalty. There are many sentencing options available in the Children’s Court.

There are also pre-sentence programs available that, if completed, may have an additional mitigating effect during the sentencing hearing, such as drug and alcohol programs or victim/offender mediation programs.

In some circumstances, it is also necessary to obtain reports about issues that may have had an impact on the child at the time of the offending, such as mental health issues or intellectual or neurological disability, and what sentencing options may be appropriate for them or identifying supports that can be put in place to help the child. Our team is well versed in the supports that are available in the community and will be able to identify what might assist your child.

Whether convictions are recorded depends on the nature of the charge and, in some circumstances, it may be necessary for your lawyer to apply for a conviction not to be recorded. The success of such an application will very much come down to the individual aspects of each case. If you have a particular concern about a conviction being recorded, it is imperative that you seek legal advice in advance of your court appearance.

If the child is facing a sentence of detention, then it is important to be sure that they know what will happen if a sentence of detention is imposed. Your lawyer from Chelmsford Legal will be able to give advice on the likelihood of a term of detention and the immediate steps once a sentence of detention is ordered and will make sure the parent or guardian is aware of how to get in contact and visit the child going forward.

Conclusion

Each child’s circumstances are unique and there is no “one size fits all” calculation, Accordingly, it is essential for children to seek legal advice so as to ensure that they have a proper understanding of the nature of the charges, their options and the potential ramifications.
The team at Chelmsford Legal have a wealth of experience of representing children in the Children’s Court of Western Australia at all levels and can help you navigate what can be a troubling and overwhelming time.