Committals: Report (html)
12. The Children’s Court
Introduction
12.1 The specialist jurisdiction of the Children’s Court deals with cases involving children accused of criminal offending.[847] The Court’s Criminal Division has jurisdiction to hear and determine:
• all charges against children for summary offences[848]
• all charges against children for indictable offences triable summarily, other than six ‘death-related’ offences, which must be determined in the higher courts.[849]
12.2 The Children’s Court conducts committal proceedings for cases that it cannot hear and determine. In addition to the six death-related offences,[850] the Children, Youth and Families Act 2005 (Vic) (CYFA) prescribes several other offences that are presumed too serious to be dealt with summarily by the Children’s Court.[851] These are referred to as ‘Category A Serious Youth Offences’,[852] and they can only be heard and determined in the Children’s Court if the child or prosecution requests it, the court is satisfied that the sentencing options available to it are adequate to respond to the child’s offending, and:
• it is in the interests of the victim or victims that the charge be heard and determined summarily, or
• the accused is particularly vulnerable because of cognitive impairment or mental illness, or
• there is a substantial and compelling reason why the charge should be heard and determined summarily.[853]
12.3 If a case involves a ‘Category B Serious Youth Offence’,[854] before dealing with the case summarily, the Children’s Court must consider whether the charge is suitable to be heard and determined summarily.[855]
12.4 This chapter considers how the Commission’s recommendations will operate in the Children’s Court and makes additional recommendations that apply only in this jurisdiction.
Committals in the Children’s Court: the present system
The role of the Children’s Court
12.5 The purpose of the Criminal Division of the Children’s Court is to:
• divert children away from the criminal justice system where possible and appropriate
• reduce the stigma caused to a child by contact with the criminal justice system
• encourage a child to accept responsibility for unlawful behaviour
• respond to a child’s offending behaviour in a manner that acknowledges the child’s needs and assists with rehabilitation
• provide children with opportunities to strengthen and preserve relationships with family and other persons of importance in the child’s life
• provide children with ongoing pathways to connect with education, training and employment.[856]
12.6 Children charged with serious indictable offences often present with complex and multifaceted issues. These include:
• child protection involvement
• a history of, or being victims of, abuse, trauma and neglect
• neuro-disabilities
• a history of, or current, drug and alcohol abuse issues and poor mental health
• other characteristics that underscore the complexity of offending by children and young people.[857]
12.7 Accordingly, a ‘very different approach to both the ascertainment of and response to criminality on the part of young persons’ is required. As Justice Frank Vincent observed:
It is only where very special, unusual, or exceptional, circumstances exist of a kind which render unsuitable the determination of a case in the jurisdiction specifically established with this difference in mind, that the matter should be removed from that jurisdiction to the adult courts.[858]
12.8 The Charter of Human Rights and Responsibilities Act 2006 (Vic) also recognises:
A child charged with a criminal offence has the right to a procedure that takes account of his or her age and the desirability of promoting the child’s rehabilitation.[859]
Current committal process in the Children’s Court
12.9 Prior to the introduction of Category A and B Serious Youth Offences in 2018, the six death-related offences were the only offences the Children’s Court did not have jurisdiction to determine. Cases involving other serious offences could be uplifted to the higher courts for determination following application by the prosecution.
12.10 In cases it cannot or will not hear and determine, the Children’s Court conducts committal proceedings, following the procedure prescribed in the Criminal Procedure Act 2009 (Vic) (CPA),[860] before the case is heard and determined in the County or Supreme Courts.
12.11 As it is presumed that cases involving Category A Serious Youth Offences should be heard and determined by the higher courts, the Children’s Court is now managing a greater number of committal proceedings. In 2014–15 there were nine cases in the Children’s Court committal stream.
12.12 In 2018–19 there were 52 cases.[861] Of these:
• 24 were dealt with summarily in the Children’s Court[862]
• 10 were committed to the high courts, four following a plea of guilty and six following a plea of not guilty
• 18 remain pending in the Children’s Court.[863]
Removing committals from the Children’s Court
12.13 The Children’s Court and Victoria Legal Aid are ‘strongly opposed’[864] to removing committal proceedings from the Children’s Court.
12.14 The Children’s Court submitted that the risks and disadvantages far outweigh any perceived advantages for several reasons:
• The Court’s judicial officers have specialist expertise in determining matters involving children and young people.
• Its courtrooms, facilities, processes and procedures are child-centric and/or have been modified for the jurisdiction of the Court.
• As a specialist court, it has greater scope to hear and determine indictable matters summarily.
• Transferring the committal process to the higher courts will risk delaying proceedings involving child accused and reverse the status quo, namely that child accused should be tried in the Children’s Court unless a statutory exception arises.[865]
12.15 Victoria Legal Aid submitted:
Removing committals in the children’s jurisdiction will undermine the longstanding specialist framework under the CYFA, which has been designed to respond to criminal offending by children and young people. [The CYFA] demands more effort and rehabilitative innovation, to secure a reduction in harm and recidivism for these young people who will almost certainly re-enter the community.[866]
12.16 Consistent with the recommendations made in this report to keep committal proceedings in the Magistrates’ Court, the Commission does not propose any changes that would reduce the involvement of the Children’s Court in cases where a child is accused of a serious criminal offence.
Children accused of Supreme Court offences
12.17 In Chapter 5, the Commission recommends that all cases involving offences within the exclusive jurisdiction of the Supreme Court should be filed in the Supreme Court, aside from Children’s Court cases.
12.18 The current framework for managing inherent jurisdiction matters in the Children’s Court should be maintained. This will allow the Children’s Court, with its appropriate facilities and specialised judicial officers, to initially manage the case.
12.19 The new case management approach recommended in Chapter 6, including court-supervised case conferencing, replacement of committal mention and committal hearings with an issues hearing and the availability of cross-examination, should similarly apply to all cases managed by the Children’s Court that are then transferred to the County or Supreme Court for hearing and determination.
Areas of reform specific to the Children’s Court
12.20 The Children’s Court asked the Commission to consider recommending reform in relation to:
• the timing of applications for summary jurisdiction
• management of cases involving adult and child co-accused
• transfer to the trial court of related indictable offences.[867]
Timing of applications for summary jurisdiction
12.21 In cases involving a Category A Serious Youth Offence (except in those involving a death-related offence) a child accused can make an application for summary jurisdiction.[868] The Children’s Court must be satisfied the sentencing options available to it are adequate to respond to the child’s alleged offending, and either:
• it is in the interests of the victim that the charge be heard and determined summarily
• the child accused is particularly vulnerable because of cognitive impairment or mental illness
• there is a substantial and compelling reason why the charge should be heard and determined summarily.[869]
12.22 The CYFA does not prescribe when an application for summary jurisdiction should be made.
12.23 In the view of the Children’s Court, summary jurisdiction applications create delay as they require it to make a detailed assessment as to jurisdiction. This takes the focus away from the resolution of charges:[870]:
[Lawyers] are turning their minds to argue jurisdiction and preparing arguments to establish/contest substantial and compelling reason to enable the charges to be heard summarily in the Children’s Court away from other procedural aspects of the case.[871]
12.24 The Children’s Court submitted that ‘it is essential for the issue of jurisdiction to be resolved as soon as possible’, and accordingly supported a recommendation that applications for summary jurisdiction should only be made after committal mention in exceptional circumstances.[872]
Recommendation
49 The Children, Youth and Families Act 2005 (Vic) should be amended to require applications for summary jurisdiction be made prior to, or at, the issues hearing. Applications for summary jurisdiction should only be made after an issues hearing in exceptional circumstances.
Management of cases involving adult and child co-accused
12.25 Currently in cases involving adult and child[873] co-accused charged with a death-related offence,[874] a joint committal proceeding may occur.[875] In doing so, victims and witnesses are only required to participate in one committal proceeding. There is no equivalent mechanism available in relation to other Category A Serious Youth Offences.
12.26 The Children’s Court submitted that the Commission consider addressing this. In its view, allowing joint committal proceedings in cases involving the other Category A Serious Youth Offences will:
promote efficiency in the use of court time and resources, avoid the duplication of witness evidence and cross-examination across the jurisdictions, reduce delay and allow streamlined processes where co-accused are being prosecuted across two jurisdictions.[876]
Recommendation
50 The Children, Youth and Families Act 2005 (Vic) and the Criminal Procedure Act 2009 (Vic) should be amended to permit issues hearings to be held jointly in cases involving child and adult co-accused.
Transfer of related indictable offences to trial court
12.27 If a child accused is committed for trial, all related summary offences[877] are transferred to the trial court along with the indictable offence on which the accused was committed.[878]
12.28 There is no legislative mechanism by which the Children’s Court can transfer related indictable offences where a child—aged 16 years or older at the time of the alleged offence—is also charged with a Category A (or B) serious youth offence and is committed to stand trial. The Court can only transfer related indictable offences if it finds that ‘exceptional circumstances’ exist.[879]
12.29 According to the Children’s Court, ‘the potential consequence of this procedural limitation is that separate jurisdictions may be determining charges/sentencing the child for related offending’.[880]
12.30 To address this, the Children’s Court recommends that where cases are uplifted from its jurisdiction, the CYFA should allow for related indictable offences to be transferred to the higher court without the need for a finding that exceptional circumstances exist.[881]
Recommendation
51 The Children, Youth and Families Act 2005 (Vic) should be amended to allow the Children’s Court to transfer related indictable offences for hearing and determination in the County or Supreme Courts, in cases that are uplifted from its jurisdiction.
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Children, Youth and Families Act 2005 (Vic) s 8(1).
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Ibid s 516(1)(a).
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Ibid s 516(1)(b).
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Murder, attempted murder, manslaughter, child homicide, arson causing death and culpable driving causing death: Ibid s 516(1)(b).
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This presumption only applies if the accused is 16 years or older: Ibid s 3(1).
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Ibid s 3(1). The offences are murder; attempted murder; manslaughter; child homicide; intentionally causing serious injury (Crimes Act 1958 (Vic) s 15A); aggravated home invasion (Crimes Act 1958 (Vic) s 77B); aggravated carjacking (Crimes Act 1958 (Vic) s 79B); arson causing death (Crimes Act 1958 (Vic) s 197A); culpable driving causing death (Crimes Act 1958 (Vic) s 318); an offence against section 4B of the Terrorism (Community Protection) Act 2003 (Vic); a provision of Subdivision A of Division 72 of Chapter 4 of the Criminal Code of the Commonwealth; a provision of Part 5.3 or 5.5 of the Criminal Code of the Commonwealth; a provision of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) as in force before its repeal.
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Children, Youth and Families Act 2005 (Vic) s 356(6).
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Ibid ss 3(1), 356(8). The offences are recklessly causing injury in circumstances of gross violence (Crimes Act 1958 (Vic) s 15B); rape (Crimes Act 1958 (Vic) s 38); rape by compelling sexual penetration (Crimes Act 1958 (Vic) s 39); home invasion (Crimes Act 1958 (Vic) s 77A); carjacking (Crimes Act 1958 (Vic) s 79). See s 356(8) for a list of the court’s mandatory considerations when making this determination.
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Children, Youth and Families Act 2005 (Vic) s 356(8).
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Ibid s 356C.
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Submission 17 (Children’s Court of Victoria).
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DL v Reynolds [1994] (Supreme Court of Victoria, Vincent JA, 9 August 1994) in OPP v BW [2010] VChC 2, 5.
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Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(3).
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Children’s, Youth and Families Act 2005 (Vic) ss 356(3), 516(1)(c), 528(2)(b).
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Submission 17 (Children’s Court of Victoria).
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Of these cases, the indictable charge was ‘struck out’ in 12 cases, the Children’s Court granted summary jurisdiction in five, in five all charges were struck out, one was dealt with summarily as the accused was under 16 and it was erroneously commenced in the committal stream, and one case was transferred to the Magistrates’ Court due to the accused’s age: Submission 17 (Children’s Court of Victoria).
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As at 6 September 2019: Submission 17 (Children’s Court of Victoria).
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Submission 17 (Children’s Court of Victoria).
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Ibid.
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Submission 13 (Victoria Legal Aid).
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Submission 17 (Children’s Court of Victoria).
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Children’s, Youth and Families Act 2005 (Vic) s 356(6).
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Ibid s 356(6)(b).
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Consultation 23 (Children’s Court of Victoria).
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Ibid.
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Ibid, Submission 17 (Children’s Court of Victoria).
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This only applies to children over the age of 15 at the time the proceeding commenced: Children, Youth and Families Act 2005 (Vic)
s 516A(1)(b)(i).
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Murder, attempted murder, manslaughter, child homicide, arson causing death or culpable driving causing death: Children, Youth and Families Act 2005 (Vic) s 516A(1)(b)(ii).
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Children, Youth and Families Act 2005 (Vic) s 516A.
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Submission 17 (Children’s Court of Victoria).
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‘Related offences’ are those that are ‘founded on the same facts or form… a series of offences of the same or a similar character’: Criminal Procedure Act 2009 (Vic) s 3.
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Criminal Procedure Act 2009 (Vic) s 145(1); Children, Youth and Families Act 2005 (Vic) s 528.
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Children, Youth and Families Act 2005 (Vic) s 356(3).
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Submission 17 (Children’s Court of Victoria).
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Ibid.
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