Children’s Court update 2016

P Johnstone¹

[17-2000] Introduction

This paper has been prepared for the 2016 Local Court Southern Regional Conference, and is to be presented to country Magistrates at Kiama on 2 March 2016.²

First, I wish to acknowledge the traditional occupiers of the land on which we meet and pay my respects to their Elders past and present.

The purpose of this paper is to alert Local Court Magistrates to recent developments affecting the exercise of the Children’s Court jurisdiction. The paper will build on similar previous presentations and is designed to be a reference resource that may be used to assist you when hearing matters involving children.

This paper will be presented in two main parts consistent with the bifurcated jurisdiction of the Children’s Court. The first part will deal with the Court’s care and protection jurisdiction and will be divided into three sub-parts that will conclude by traversing some recent significant case law. It follows then, that the second part will deal with the Court’s criminal jurisdiction, divided into three sub-parts, which will conclude with an analysis of some recent relevant case law.

I have structured the paper in this way for editorial purposes. However, I wish to make it clear that whilst the Children’s Court mainly exercises jurisdiction in two discrete areas that are distinguished by jurisprudence, this is not representative of the practicality and reality of the Children’s Court.

As President of the Children’s Court for over three years now, I have observed that there is an unequivocal correlation between a history of care and protection interventions and future criminal offending. This nexus between care and crime has been persuasively articulated by a number of respected commentators, including Dr Judith Cashmore.³

This tragic reality is one of a multitude of issues that have had a significant impact upon me and a reality that I have no doubt you have all been exposed to in the various locations within which you preside.

I continue to be astounded by the complexity of the issues that arise in this jurisdiction. The social disadvantage facing the children and young people, and their families, who have their lives characterised by decisions made by this Court, is a profound reminder of the need for continuing legal education and the need to work together as members of the Judicial community to address the ongoing issues needing to be addressed.

Accordingly, one conclusion I have arrived at is that as Judicial Officers we cannot view the issues in the Children’s Court jurisdiction through a strictly legal lens.

We must also view these issues in the context of the disadvantage and disempowerment that have defined the lives of generations of families who come before the Court.

As Judicial Officers, we have a social responsibility to perform our roles consistent with the administration of justice. But this is a particularly special jurisdiction that is imbued with the practice of therapeutic jurisprudence and restorative justice.

I hope, therefore, too impress upon you that the specialised nature of work relating to children and young people must be safeguarded and respected both in theory and practice.

I am an advocate, therefore, for the expansion of the specialist nature of the jurisdiction across as much of the state as might be achieved over time.

The expansion contemplated is reflective of an enlightened view of an accessible and tailored justice system. It recognises the inherent value in applying consistent approaches across the whole State. There is also an added familiarity with the practices and procedures applied and with the nuances of decision making, through regular exposure to the relevant legislation and the applicable case law.

The Children’s Court of NSW has been provided with two additional Children’s Court Magistrates. In addition to a new Children’s Magistrate based in Lismore, presiding over the Northern Rivers Circuit, there is also a new Magistrate, based at Parramatta, who is presiding over the new Hunter Circuit. Children’s Court Magistrates now hear something like 90% of care cases in the State. The coverage for criminal matters remains, however, at about 60%. That is where you, the Local Court Magistrates exercising Children’s Court jurisdiction, play such a hugely important role.

I view these forums as an important means by which the needs of Judicial Officers exercising this jurisdiction can be properly ventilated. Any discourse that facilitates collaboration, capacity building and information exchange is a discourse that is worth supporting.

Part one: the care and protection jurisdiction of the Children’s Court

In the introductory portion of this paper I reflected upon the complexity of the Children’s Court jurisdiction. The jurisdiction is fraught with numerous challenges.

I do not have the time to traverse and clarify all of the complexities, so I have identified three current important issues to discuss this year, and three recent cases to review. These cover the following topics:

(a): Unexplained injuries
(b): Cultural planning, with a particular focus on Aboriginal children
(c): The impact of trauma and the importance of language in the socialisation of children
(d): Interim orders; Joinder and the Aboriginal Placement Principles.

Unexplained injuries

Sadly, matters involving unexplained injuries are matters we frequently have to deal with as Judicial Officers exercising Children’s Court jurisdiction. This is not just due to the high incidence of such cases, it is a result of the historical and intergenerational disadvantage that characterises the lives of many of the parents/caregivers with matters before this Court.

As I illustrated earlier, we cannot administer the law blindly, we must train our minds to assess the law by reference to its social context. This exercise is particularly critical in matters involving unexplained injuries.

Matters involving unexplained injuries to a child provoke significant challenges for Judicial Officers when making decisions consistent with the safety, welfare and well-being of the child. It is well established in research and amongst the medical profession that unexplained injuries, such as “shaken baby syndrome”, arise out of circumstances that are generally consistent with the parent or caregiver’s own disadvantage. For example, an inability to communicate or manage frustration, poor parental role models, youth, lack of support and lack of education.

Perhaps these are some of the social reasons that make unexplained injury cases so challenging for Judicial Officers. The complexity of such cases is compounded by the fact that the Court is not dealing with absolutes. In cases of drug use or neglect, the Court can more clearly establish that either the parent was using drugs or was not, or left alone in an unkempt environment with no food, or not. With unexplained injuries, there are a greater range of intervening factors that could potentially exculpate the suspected perpetrator.⁴

An additional area that may be confounding is that Care proceedings inquiring into unexplained injuries are not undertaken in accordance with the criminal standard to establish that a parent/caregiver’s actions caused the injury to the child. Care proceedings do not revolve around the apportionment of guilt. The Judicial Officer must therefore be resolute in ensuring that the focus of the proceedings is directed toward the safety, welfare and well-being of the child.

Lord Nicholls articulates this tension in the matter of O & N stating:

Whether or not an alleged event occurred in the past raises a question of proof. In truth, the event either happened or not. That is not so with a future forecast.

The future has not happened, and future human conduct is never certain. But in practice, the past is often as uncertain as the future. The Judge cannot know for certain what happened and can only assess the degree of likelihood that something happened. The same is true of the future. The decision maker has to assess the degree of likelihood that an inherently uncertain event will occur.⁵

The High Court decision of M v M (1988) 166 CLR 69 enunciated the appropriate test to undertake in order to assess future risk of harm to the child. It was there held that in all decisions affecting children, the proper test to be applied when administering the paramount consideration of the safety, welfare and well-being of the child is that of “unacceptable risk” to the child.⁶ The High Court said that in applying the unacceptable risk of harm test it is necessary to determine firstly whether a risk of harm exists and, secondly, the magnitude of that risk.

Whether there is an unacceptable risk of harm to the child is to be assessed from the accumulation of factors proved according to the relevant civil standard.⁷

In Director-General of Department of Community Services; Re “Sophie” [2008] NSWCA 250, His Honour Justice Sackville stated:

[67] The reasoning process I have outlined involves an error of law. The primary Judge, although stating the principles governing the burden of proof correctly did not apply them correctly. It was appropriate to take into account the gravity of the allegation of sexual misconduct made against the father, as required by s 104(2) of the Evidence Act. It was not appropriate to find that the Director-General had failed to satisfy the burden of proof on the balance of probabilities simply because his Honour could not exclude a hypothesis that, although consistent with innocence, was highly improbable. To approach the fact-finding task in that way was to apply a standard of proof higher than the balance of probabilities, even taking into account the gravity of the allegation made against the father. [Emphasis added.]

[68] As the High Court pointed out in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd at 171, statements to the effect that clear and cogent proof is necessary where a serious allegation is made are not directed to the standard of proof to be applied, but merely reflect the conventional perception that members of society do not ordinarily engage in serious misconduct and that, accordingly, a finding of such misconduct should not be made lightly. In the end, however, as Ipp JA observed in Dolman v Palmer at [47], the enquiry is simply whether the allegation has been proved on the balance of probabilities.

The test in M v M is the most instructive guide to your decision making in matters of unexplained injury. A positive finding of an allegation of harm having been caused to a child should only be made where the Court is so satisfied according to the relevant standard of proof, with due regard to the matters set out in Briginshaw. Nevertheless, an unexcluded possibility of past harm to a child is capable of supporting a conclusion that the child will be exposed to unacceptable risk in the future from the person concerned. Thus, one needs to examine the likelihood of the feared outcome occurring, and secondly, the severity of any possible consequences. If, on the balance of probabilities, you are satisfied that a risk of harm exists, and that the magnitude of that harm would require intervention, you would then examine what might be done to ameliorate that risk, for example, the nature and extent of parental contact, including any need for supervision.⁸

Cultural planning for Aboriginal children and young people

In my view, culture is central to the identity formation and socialisation of children and young people. It carries a young person through their formative years and provides a sense of belonging in the world. If a child is removed from their parents, culture remains important — whether the child is at an age in which they are cognisant of this process or not. It follows then, that when making decisions about a child or young person’s care, we must pay particular attention to providing options that will enhance a child or young person’s socialisation and sense of belonging.

I appreciate that I have raised this issue at previous conferences, but it is important that I continue to do so until comprehensive cultural planning is embedded at all levels of the care and protection process. While I have witnessed some improvements during my tenure at the Children’s Court, I am not yet satisfied that there has been a widespread application and appreciation of this need.

As you are aware, the Care Act is to be administered under the “paramountcy principle”, that is, that the safety welfare and well-being of the child is paramount: s 9(1). In addition to this paramountcy principle, the Care Act sets out other particular principles to be applied in the administration of the Care Act: s 9(2).

One of these principles is that account must be taken of concepts such as culture, language, identity and community.

Since my last address at the Regional Conference in 2014, I have committed myself to safeguarding, monitoring and insisting upon the implementation of the Aboriginal and Torres Strait Islander Placement Principles, and as a corollary, the development of focussed cultural planning for Aboriginal children and young people.

It is a principle to be applied in the administration of the Care Act that Aboriginal and Torres Strait Islander people are to participate in the care and protection of their children and young people with as much self-determination as is possible: s 11.

Further, Aboriginal and Torres Strait Islander families, kinship groups, representative organisations and communities are to be given the opportunity, by means approved by the Secretary, to participate in decisions made concerning the placement of their children and young persons and in other significant decisions made under this Act that concern their children and young persons: s 12.

Finally, a general order for placement of an Aboriginal or Torres Strait Islander child who needs to be placed in statutory out-of-home care is prescribed: s 13(1). In summary, the order for placement is, with:

(a)

a member of the child’s or young person’s extended family or kinship group, as recognised by the community to which the child or young person belongs,

(b)

a member of the Aboriginal or Torres Strait Islander community to which the child or young person belongs,

(c)

a member of some other Aboriginal or Torres Strait Islander family residing in the vicinity of the child’s or young person’s usual place of residence,

(d)

a suitable person approved by the Secretary after consultation with:

(i): members of the child’s extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, and
(ii): such Aboriginal or Torres Strait Islander organisations as are appropriate to the child or young person.

Before it can make a final Care order, the Children’s Court must be expressly satisfied that the permanency planning for the child has been appropriately and adequately addressed: s 83(7).

Permanency planning means the making of a plan that aims to provide a child or young person with a stable placement that offers long-term security: s 78A. The plan must:

(a): have regard, in particular, to the principle that if a child is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child’s circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to permanent placement: s 9(2)(e),
(b): meet the needs of the child: s 78A(1)(b), and
(c): avoid the instability and uncertainty arising through a succession of different placements or temporary care arrangements: s 78A(1)(c).

Culture is a critical element in the assessment of what is in a child’s best interests and a critical consideration in assuring the safety, welfare and wellbeing of a child. It is critical that decision makers in child protection matters are provided with sufficient information to be able to appreciate the distinct role culture plays in the identity formation and socialisation of each child.

The legislative requirement to address the Aboriginal and Torres Strait Islander Placement Principles and to adequately and appropriately address cultural planning are reminders of the significance of Aboriginal cultural identity in the socialisation of a child.

The need for appropriate cultural planning is linked to the need to ensure that early intervention and pre-removal options are explored to their fullest extent.

Aboriginal cultural identity centres on an appreciation of the significance of culture, land/country, historical exclusion in decision-making and reconnection with family.

I have made numerous comments in past cases in relation to the inadequacy of cultural planning, particularly with respect to Aboriginal children.

As I stated in DFaCS v Gail and Grace [2013] NSWChC 4 at [94]:

The Aboriginal and Torres Strait Islander Principles are in the Care Act 1998 for good and well-documented reasons that do not need to be traversed anew in these reasons. They are to be properly and adequately addressed in all permanency planning and other decisions to be made under the Act and in matters coming before the Children’s Court.

I am happy to report that in the past year a template for a cultural action planning section in the Care Plan has been developed. The idea behind this template is to ensure that adequate casework is undertaken to appropriately identify a child’s cultural origins, and to put in place fully developed plans for the child to be educated, and to fully immerse the child in their culture; including family, wider kinship connections, totems, language and the like.

I am optimistic that this will not be a superficial solution to a complex issue. I am committed to a future where Aboriginal children and young people understand their lineage and heritage. I strongly believe that if Aboriginal children and young people are culturally supported at a young age, they have a better chance of successfully progressing through their lives.

The impact of trauma and the importance of language in the socialisation of a child

The impetus for this topic arose from my attendance at the “Speaking their language: young people and the courtroom” conference at the Judicial College of Victoria.⁹ I was particularly struck by the research presented by Karen Hogan, on the impact of trauma, and the session by Professor Pamela Snow, on the oral language skills of children and young people.

We see children and young people on a daily basis, and recognise the impact trauma can have on young persons’ ability to articulate themselves and their ability to regulate their behaviours.

While it is important to understand the impact of language in the criminal jurisdiction, for example how to make a child witness feel at ease, in the care jurisdiction, the impact of language and its correlation with trauma is an important factor to understand and to add to your knowledge of the effects of abuse and neglect. What follows in this section, is my summary of the research presented.

Karen Hogan, the Director at the Gatehouse Centre of the Royal Children’s Hospital in Victoria explained that a history of trauma can lead to a wide variety of difficulties and challenges for children and young people. She explained that negative relational experiences at an early age can have a significant impact on the child or young person’s socialisation.

Ms Hogan made the following assertion, which I consider to be particularly poignant:

Children do well if they can. But trauma seriously impacts the opportunity for children to learn HOW to do well.¹⁰

Ms Hogan’s presentation was structured according to the effects that different types of abuse can have on a child. Her research showed that the effects of child abuse and family violence result in trauma that affects cortisol levels and neural development, impacting the structural and functional development of the brain and resulting in behavioural ramifications.¹¹

These behavioural ramifications can be classified either as internalising behaviours or externalising behaviours. Internalising behaviours include fears or phobias, anxiety, obsessiveness and control; depression, lack of hope, withdrawal; self-harm and identity confusion. Externalising behaviours include aggression, poor concentration, hyper vigilance, acting out and risk taking behaviours, sexualised behaviours/sexual risk taking and destructive behaviours.¹²

Ms Hogan concluded by outlining the long term impacts of child abuse and family violence, especially where: the abuse is not recognised and stopped; the child/young person’s experience is not validated; the child/young person is not assisted to feel safe, understand and manage their emotional experience; explore their loss and create a positive future.

Implicit in Ms Hogan’s research and observations is the conclusion that trauma can significantly affect a child/young person’s ability to identify and articulate abuse, which can leave the child/young person with unresolved issues and affect their long term health and development.

It follows then, that communication is a vital part of preserving the safety, welfare and well-being of the child. In Professor Pamela Snow’s presentation, she described the different factors that can impact upon a child or young person’s language development. Importantly, she stated that:

We have evolved a special facility for oral language, such that it is innate BUT it is highly vulnerable to a range of developmental conditions eg hearing impairment, intellectual disability, autism spectrum disorders, brain injury and it is highly sensitive to environmental exposure.¹³

Professor Snow’s presentation explained that articulating feelings is a ‘higher-order’ communication skill which draws upon a range of cognitive, psychological and social factors. Importantly, she spoke of “Alexithymia” which means “having a lack of words for emotions”. She explained that this was typically associated with autism spectrum disorders but may also occur in children who have either witnessed or been victims of trauma.¹⁴

A noteworthy aspect of Professor Snow’s presentation was her reference to a 1995 study by Hart and Risley. This study examined the link between language exposure and children of parents on welfare benefits, working class parents and professional parents.

Hart and Risley’s study examined children (aged 3) and found that:

Children of parents on welfare benefits experienced 616 words per hour
Children of working class parents experienced 1251 words per hour and
Children of professional parents experienced 2153 words per hour.

Further, Hart and Risley conducted a longitudinal follow-up and examined these children at ages 9 and 10. This longitudinal study showed strong links between language exposure at age 3 and academic outcomes later in life.

Professor Snow also identified a number of “red flags” that may indicate communication difficulties.

These are: a diagnosed developmental disability, special school attendance, academic under-achievement, teacher, parent, or employer concern, social/peer level interpersonal difficulties, restlessness, avoidance and poor eye-contact, overly acquiescent style, “yep, nup, dunno, maybe, whatever” responses and a history of either internalising or externalising mental health problems.

At the conclusion of her presentation, Professor Snow quoted a statement made in 2007 by the Former Chair of the UK Youth Justice Board, Rod Morgan:

It may be too much to say that if we reformed our schools, we would have no need for prisons. But if we better engaged our children and young people in education we would almost certainly have less need of prisons. Effective crime prevention has arguably more to do with education than sentencing policy.¹⁵

This quote exemplifies the cross-over between care and crime. The research by Ms Hogan and Professor Snow show that there is a link between trauma and communication.

Recent case law in care and protection

Joinder of parties

In proceedings under the Care Act, the parties will generally comprise the Secretary of the department, the child or children, the parent(s), the step-parent(s), and the legal representative(s), being the Independent Legal Representative for children under 12, or the Direct Legal Representative for children 12 and over, up to the age of 18.

Other persons having a genuine concern for the safety, welfare and well-being of the child(ren) may be given leave to appear in the proceedings, or be legally represented, and examine and cross-examine witnesses.¹⁶

Others who might be significantly impacted by a decision of the Children’s Court, not being parties to the proceedings, are to be given “an opportunity to be heard on the matter of significant impact”.¹⁷ Historically, such persons were generally not made parties, but could present an affidavit. They could not, however, cross-examine or call witnesses of their own.

There has been something of a change in approach on this topic in recent times, partly driven by the transfer of casework to the NGO sector, but also as a result of some recent pronouncements by superior courts. The Court is now increasingly receptive to joinder applications and more likely to make orders than in the past.

In Re June (No 2) [2013] NSWSC 1111 (hereinafter referred to as Re June), McDougall J clarified the distinction between ss 87 and 98(3) of the Care Act:¹⁸

[186] The second point to note is that the opportunity to be heard is not the opportunity to participate in the proceedings either as a party as of right (s 98(1)) or as someone given leave (s 98(3)). Thus, it does not follow that the opportunity to be heard includes the right to examine or cross-examine witnesses at least generally.

[187] However, if the question of significant impact is one that is the subject of evidence, and if there are direct conflicts in that evidence, then in a particular case, the opportunity to be heard may extend to permitting cross-examination in that particular point.

The more recent decision in Bell-Collins Children v Secretary, Department of Family and Community Services [2015] NSWSC 701, provides further clarification.

During case management, the Children’s Magistrate had refused the application of the grandparents to be joined as a party. At the hearing, which came before me at the Children’s Court at Woy Woy,¹⁹ I gave the grandparents an extensive opportunity to be heard, under s 87(1).

In the de novo appeal to the Supreme Court, the grandparents renewed their application for joinder and the matter was considered by Justice Slattery.

The significant aspect of Slattery J’s decision was his distillation of the distinction between the opportunity to be heard under s 87(1) and the granting of leave to appear under s 98(3):

[33] … In s 87(1) the threshold is one to ensure that non-parties who may suffer adverse impacts from Care Act orders will receive procedural fairness before such orders are made. The focus is on “impact on a person”.²⁰

[34] But the threshold for s 98(3) is more child-centred. The s 98(3) right is only available to a person who in the Court’s opinion “has a genuine concern for the safety, welfare and well-being of the child”. It is perhaps because the s 98(3) threshold is more altruistic than that under s 87 that the Care Act can afford a wider scope to participate to those who receive a grant of s 98(3) leave. Persons meeting s 98(3) leave will sometimes be, as the great grandparents are in this case, people who can by their participation fill an evidentiary gap in the proceedings that it may be in the best interests of that child to see filled in the proceedings. In my view that is the case here.²¹

Accordingly, Slattery J granted the grandparents leave on terms under s 98(3). The grandparents were only granted leave to cross-examine and adduce evidence about their own suitability as alternative carers for the children.

Finally, I wish to remind you of a decision by Magistrate Schurr delivered in 2003 in which an NGO, Anglicare, was joined as a party to Care proceedings: In the matter of “Pamela” [2003] CLN 3. In that matter, the Department of Community Services (as it was then designated) sought an order from the Court revoking the leave of Anglicare to appear as a party. The Secretary argued that the NGO had insufficient interest in the proceedings and that it was probable that the positions taken by the parties would be duplicated.

Magistrate Schurr outlined Anglicare’s involvement in proceedings as follows:

In late 1998 the Department of Community Services delegated to Anglicare the role of foster care agency, a role it continues to date. Anglicare does not exercise any powers of parental responsibility for this child, and these powers remain with the Minister. Anglicare workers do, however, supervise the foster carers, coordinate access by the birth family and liaise with the Department of Community Services through case conferences.²²

Anglicare had originally sought leave to be joined as a party to argue for an “independent assessment of the child and family members”. Anglicare argued that once leave was granted there was no limit on their role in the proceedings.

The Department argued that leave should only be granted to those persons with rights, powers and duties relating to children, by reference to the objects in s 8(a) of the Care Act. It was argued that Anglicare had neither parental responsibility nor the day to day care of the child and could not be granted leave.

Magistrate Schurr concluded that Anglicare’s involvement with the child was sufficient to bring it within the scope of s 98(3).

Interim orders

The next matter I will deal with is the topic of interim orders, and to remind you all of the decision of Blewitt ChM in Re Mary [2014] NSWChC 7. In this matter, Blewitt ChM considered the decision of Rein J in Re Timothy [2010] NSWSC 524 in relation to interim orders.

Specifically, Blewitt ChM considered whether the Children’s Court could rescind or vary an interim order allocating parental responsibility without the need for an application to be made under s 90 of the Care Act.

Blewitt ChM concluded that interim orders allocating parental responsibility can be amended without the need for a s 90 application.

Whilst a party is not precluded from making a s 90 application, it is not an essential requirement:

In the absence of express provisions in the Care Act that require the application of the provisions of s 90 to vary an existing interim order, and having regard to the inconclusive remarks of Rein J in Re Timothy, I find that the Court does have the power to entertain an oral application for varying of an existing interim order without the need for the moving party to file an application pursuant to s 90.²³

What this means, in practical terms, is that the Children’s Court will be less likely in the future to make time limited orders for the allocation of parental responsibility to the Minister.

The Aboriginal and Torres Strait Islander Child Placement Principles

Consistent with my determination to ensure that application of the Aboriginal and Torres Strait Islander Child Placement Principles becomes an automatic, comprehensive process, it is apt that I discuss relevant case law to further emphasise this point.

The Aboriginal and Torres Strait Islander Child Placement Principles represent a legislative recognition of the tremendous care, attention, thought and consideration required when making decisions to assure the safety, welfare and well-being of an Aboriginal or Torres Strait Islander child.

Justice Muirhead described the discrete needs of Aboriginal children and young people in the matter of Jabaltjari v Hammersley:

The young Aboriginal is a child who requires tremendous care and attention, much thought, much consideration.²⁴

As I mentioned above, the rationale behind these principles is to provide guidance with respect to preserving Aboriginal children’s connection to their family, community, culture, history and identity. As the Commission for Children and Young People confirm:

The Aboriginal Child Placement Principle is based on the value that every Aboriginal child has the right to be raised within their own culture and community. It recognises the critical importance of cultural identity and connectedness to development and wellbeing: Aboriginal children and young people do better if they remain connected to their culture, community and country.²⁵

It follows, that application of these principles must not be superficial. In the decision of Drake v Drake [2014] FCCA 2950, Judge Sexton stated that the Department:

… adduces no evidence of the Children having the opportunity to enjoy their Aboriginal culture in more than a superficial way.²⁶

Judge Sexton went on to state that the Department had not complied with the Aboriginal Child Placement Principles when the children were removed and placed in out-of-home care. Significantly, Judge Sexton stated:

While the Department says it understands the importance of the Children remaining connected to their Aboriginal culture and their right to enjoy that culture, I find no basis to conclude that the Children’s needs in this regard will be met if they remain in out-of-home care. For example, in the Department’s Safety Assessment Reports of November 2013 and February 2014, the section “cultural identity” was marked “not applicable” for each Child, an entry Ms C was unable to explain. On the Department’s proposal, I find it unlikely that the Children would have the opportunity to enjoy their culture or to participate in activities with others who share that culture. The authorities, as set out below, confirm Mr R’s view that the Department’s proposal in relation to connecting the Children to their culture does not meet the legislative requirements.²⁷

What the Department had proposed in this matter was that the children would attend the Aboriginal Medical Service, that the Department would make carers aware of events of Aboriginal and Torres Strait Islander cultural significance and that the children had been provided with Aboriginal stories and activity books.²⁸

Notably, Judge Sexton cited the following case law to elucidate the importance of addressing the cultural needs of Aboriginal children and young people. Judge Sexton cited the Full Court decision of In the Marriage of B and R (1995) FLC 92-636 at 82-396:

It is not just that Aboriginal children should be encouraged to learn about their culture, and to take pride in it in a manner in which other children might be so encouraged. What this issue directs our minds to is the particular problems and difficulties confronted throughout Australian history, and at the present time, by Aboriginal Australians in mainstream Australian society. The history of Aboriginal Australians is a unique one, as is their current position in Australian life …²⁹

Judge Sexton went on to cite the matter of Hort v Verran [2009] FamCAFC 214 where the Full Court stated at [106]:³⁰

In Davis & Davis & Anor (2008) 38 Fam LR 671; [2007] FamCA 1149 Young J said:

77. In B & F [1998] FamCA 239, Moore J considered the scope and meaning of the term “connection”. At 29–30 her Honour stated:

As I see it, the requirement to maintain a connection to their lifestyle, culture and traditions involves an active view of the child’s need to participate in the lifestyle, culture and traditions of the community to which they belong. This need, in my opinion, goes beyond a child being simply provided with information and knowledge about their heritage but encompasses an active experience of their lifestyle, culture and traditions. This can only come from spending time with family members and community. Through participation in the everyday lifestyle of family and community the child comes to know their place within the community, to know who they are and what their obligations are and by that means gain their identity and sense of belonging.

[Emphasis added.]

Judge Sexton concluded that the children be restored to the care of their grandmother.³¹ Her decision and reasons provide context for the need to apply the Aboriginal Child Placement Principles and that any care plans produced must appropriately and adequately address the cultural needs of the children.

Part two: the criminal jurisdiction of the Children’s Court

I now turn to address you on issues pertinent to the criminal jurisdiction of this Court. As I prefaced above, given the complexities of this jurisdiction, I am unable to address you on all of the present issues confronting the Children’s Court. However, I have selected some important current issues to discuss and I review some recent case law.

The topics highlighted are:

(a): Diversion
(b): Brain science
(c): Communicating with children and young people
(d): Doli incapax and special considerations for sentencing children.

Before I commence my discussion of these topics I would like to remind you of the accommodation requirements prescribed by s 28 of the Bail Act 2013, which requires that accommodation is a pre-condition of release for a child or young person. In other words, the child or young person cannot be released until suitable accommodation is provided.

Section 28(5) provides that the Court may direct “any officer of a Division of the Government Service” to provide information about the action being taken to obtain or secure suitable accommodation for the child. Clause 31 of the Bail Regulation 2014 provides that this information may be provided in writing or orally at court, and must address where the accused person will reside.

If the accommodation requirement is imposed, s 28(4) requires the Court to re-list the matter at least every 2 days until suitable accommodation is secured.

Diversion

I now turn to a discussion of diversion. One of the most effective ways of reducing juvenile offending is to begin prevention efforts as early as possible and to intervene aggressively with those who are already offending. Loeber, Farrington and Petechuk capture diversionary strategies as follows:

Of all known interventions to reduce juvenile delinquency, preventative interventions that focus on child delinquency will probably take the largest “bite” out of crime … “The earlier the better” is a key theme in establishing interventions to prevent child delinquency, whether these interventions focus on the individual child, the home and family, or the school and community.³²

Further, as Delfabbro and Day point out:

Attempting to develop interventions once young people have well established police records, incomplete schooling, and/or problematic peer groups, is likely to be very difficult.³³

While research is useful and provides an important foundation for any dialogue about diversion, in my view, it is anecdotally incontrovertible that diversion is a critical pathway for young people. It may be a more resource intensive pathway, but by adequately addressing a child or young person’s criminogenic needs, it has the potential to completely alter the course of a young person’s life.

The acute need for diversion is emphasised by Bargen:

… much more attention needs to be paid to deciding how to conceptualise and respond to young people in trouble with the law, and to their families, communities and victims, and how to listen and respond to what these people tell us about their lives and their aspirations. We can and should be able to create a humane system that is committed to the diversion of young people wherever possible and appropriate in line with international human rights norms and practice, and one which recognises the human right of young people in trouble with the law to be treated with dignity and respect and to be provided with conditions in which they can grow and flourish into happy, contributing and well-rounded adults — surely our responsibility as adults, and an aspiration we must have for all our children.³⁴

I am guided by the responsibility and aspiration that Bargen refers to and will continue to advocate for the use of diversionary options. I will therefore traverse ground that some of you have heard before, as I believe that the more we hear about diversion, the more likely we are to activate its use. And importantly, the more diversion is used, the less we will see at risk young people appearing before the Court.

The Young Offenders Act 1997 is a statutory embodiment of early intervention and offers three alternative options for dealing with young offenders. These options are: warnings, cautions and Youth Justice Conferences (YJC’s). I will not cover the details of warnings and cautions as they are fairly self-explanatory. However, I will provide a brief exposition of YJC’s and how this option brings the individual child, family and community together to prevent future offending.

At a YJC, a young offender is with his or her family, and is brought face to face with the victim and the victim’s support person, to hear about the harm caused by their offending and to take accountability for their actions.

At the conference, the participants agree on a suitable outcome. The outcome may include an apology, reasonable reparation to the victim and steps to reintegrate the young person into the community.

A YJC is a valuable alternative to court as it is not an impersonal or exclusive process where the young person and the victim are adversaries. Rather, responsibility for dealing with the young offender is partially transferred from the State to the young person, their family, the victim and the wider community.

In New Zealand, a similar option to YJC’s exists, entitled Family Group Conferences (FGC’s). The statutory process of FGCs is similar to that of YJC’s, however, the process allows for responses tailored to specific cultural needs to allow for stronger engagement with the process.

In NSW, the Department of Justice has the Youth on Track Scheme which employs a multi-agency approach, with the involvement of the Department of Education and Communities, the Department of Family and Community Services, the Department of Health and NSW Police, in addition to non-government organisations (NGOs).

Using this collaborative approach, services on the ground – such as Police and schools — identify “at risk” youth and refer them to the Youth on Track program. An NGO case manager is allocated responsibility for working with the young person to address criminogenic factors in their lives and to provide access to specialist services and ongoing support to the young person.

In my view, we must continue to improve diversionary processes, and we must continue to educate ourselves about what works.

Research has shown that there is a link between decision-making and memory.

Many children and young people who engage in offending behaviour have experienced traumas that activate their memory, resulting in a response that impacts upon their ability to make appropriate, considered decisions.³⁵ However, just as harm and trauma accumulate over time, so does a child’s capacity to change in response to treatment.³⁶

Consequently, while environmental factors such as parents, carers and teachers can aid development, environmental factors also have the ability to facilitate change and successful development. It is essential, therefore, that our response to offending behaviour combines therapeutic interventions with traditional criminal justice approaches.

As Professor Kenneth Nunn so aptly put it:

Containment without treatment is custodial futility without any progress except maturation and chance encounters. Treatment without containment is powerless without any capacity to prevent flight away from help. Treatment and containment without education is recovery without skills to live in the real world.³⁷

It is at this stage that I note the provisions under the Mental Health (Forensic Provisions) Act 1990. These provisions enable Magistrates to divert mentally disordered young people from the criminal justice system: ss 32 and 33.

Magistrates undertake a balancing exercise when deciding whether making use of this mechanism will produce better outcomes for the young person and the community.³⁸

This therapeutic response allows the Children’s Court to dismiss the charges and discharge the young person into the care of a responsible person or on the condition that they obtain a mental health assessment or treatment. However, the lack of follow-up that could empower Magistrates with the ability to receive a report as to the young person’s compliance with treatment, coupled with the lack of access to services, increases the reluctance of Magistrates to use this provision.

The legislative scheme applicable to the Children’s Court enables considerable flexibility in sentencing. Specifically, the provisions in s 6(a), (b) and (f) of the Children (Criminal Proceedings) Act 1987:

(a)

That children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard and a right to participate, in the processes that lead to decisions that affect them.

(b)

That children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance.

…

(f)

That it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties.

[Emphasis added.]

In the Children’s Court, the Children (Criminal Proceedings) Act 1987 provides the penalties applicable: s 33. Specifically, s 33(1)(c2):

The Children’s Court … “may make an order adjourning proceedings…to a specified date (not later than 12 months from the date of the finding of guilt) for any of the following purposes (but only if bail for the offence is or has been granted or dispensed with under the Bail Act 2013”:

(i)

for the purpose of assessing the person’s capacity and prospects for rehabilitation,

(ii)

for the purpose of allowing the person to demonstrate that rehabilitation has taken place,

(iii)

for any other purpose the Children’s Court considers appropriate in the circumstances.

The deferred sentencing model is one that I encourage Children’s Magistrates to utilise.

Where possible, the Children’s Court seeks to divert a child away from a custodial sentence, and involves the young person in a consultative and participatory process that includes the relevant stakeholders. Issues of concern are identified for the young person. Methods of addressing these issues are then incorporated into an Action and Support Plan for the young person.

The young person then has his/her actions taken into account on sentence and after hearing submissions the Judicial Officer will consider this information and impose an appropriate sentence. Notably, a full suite of sentencing options are available to the Judicial Officer.

Another promising initiative in the Youth Justice arena is the development of a joint protocol to address the criminalisation of children and young people in out-of-home care (OOHC). In the 1999 Community Services Commission publication “The drift of children in care into the criminal justice system: turning victims into criminals”, the following circumstances were identified as leading to police intervention for children in OOHC:

Problematic behaviour that would be a disciplinary matter in a family home could lead to criminal charges in group homes. Staff would call police after incidents such as malicious damage and assault and an altercation would take place which then resulted in additional charges of resisting arrest, assaulting police and offensive language.
When a child’s placement broke down, the Department of Family and Community Services sometimes put out a warrant for a child resulting in their apprehension and detention.
Incidents were reported where children in care would be returned to a residential facility under bail conditions after a court hearing. These bail conditions could involve keeping to a curfew or staying within a particular facility. If a child breached these conditions, it was possible staff would report the breaches to the police which could then result in detention.
Carers were sometimes required to make a statement to the police in order to lodge a claim for victim’s compensation, which operated as an incentive for them to contact police in matters of physical aggression and assault.
Many services had explicit policies about using police as a “natural consequence” and a substitute for imposing their own disciplinary action.
The staff of some funded services were reportedly simply “not up to it” and as a result sought assistance from the police to deal with the behaviour of the young person.³⁹

Further, 46% of all legal aid high service users had spent time in OOHC.⁴⁰ The imposition of criminal charges on children and young people who would have been, but for their placement in OOHC, dealt with in the family home is unreasonable and unfair. It victimises children and young people who have already suffered sufficiently to warrant their removal from their parents/carers.

Additionally, policing children and young people in their private lives may perpetuate a cycle of negative labelling. By calling the police every time a young person displays challenging behaviours, young people may begin to see themselves as inherently bad. As Cuneen and White observe:

… if you tell someone sufficiently often that they are “bad” or “stupid” or “crazy” that person may start to believe the label and to act out the stereotypical behaviour associated with it.⁴¹

I am pleased to report that the Children’s Court, Legal Aid and the Deputy Ombudsman, Steve Kinmond, have collaborated to engage the NGO sector and the NSW Police Service to develop a protocol designed to reduce the contact of young people in residential OOHC with Police and the criminal justice system.

The protocol has two objectives. First, to reduce the incidence of police being called as a result of incidents in residential OOHC, to ensure that police will only be called in appropriate circumstances, and not in cases of “trivial” offending or breaching house rules.

The second objective of the protocol is to encourage police, when they are called, to view arrest as a last resort, and to consider other options such as cautions and warnings, or if it is necessary to take a more serious step, to proceed by way of a future CAN, rather than placing the young person in detention.

Already we are seeing a reduction in remand rates in the various Juvenile Justice Detention centres.

I am interested to see how this protocol will affect the decriminalisation of children in OOHC over the next year.

As you are all aware from your own practical experience and the information I have presented above, there is no easy panacea for the problem of young offending. Its causes are often inextricably linked to disadvantage and are thus embedded, intergenerational and complex. However, as I have illustrated, early intervention, diversion and rehabilitation are critical if we are serious in attempting to break the cycle of disadvantage.

Brain science and its relevance to children and young people

The need to safeguard the rehabilitation of children and young people is internationally recognised in the United Nations Convention on the Rights of the Child (CROC). Article 40.4 highlights that looking after children in need is a multifactorial process, stating:

A variety of dispositions, such as care; guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate to both their circumstances and the offence.⁴²

Similarly, the Beijing Rules provide a full list of considerations at rule 18.1 and state that:

A large variety of disposition measures shall be made available to the competent authority, allowing for flexibility so as to avoid institutionalisation to the greatest extent possible.⁴³

In NSW the importance of rehabilitation for children and young people is embodied in s 6 of the Children (Criminal Proceedings) Act 1987:

(a)

that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,

(b)

that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

(c)

that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,

(d)

that it is desirable, wherever possible, to allow a child to reside in his or her own home,

(e)

that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,

(f)

that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,

(g)

that it is desirable that children who commit offences accept responsibility for their actions, and wherever possible, make reparation for their actions,

(h)

that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.

In R v GDP (1991) 53 A Crim R 112 at 116, Mathews J (Gleeson CJ and Samuels JA agreeing) adopted comments by Yeldham J in R v Wilcox (unrep, 15/8/79, NSWSC):

In the case of a youthful offender … considerations of punishment and of general deterrence of others may properly be largely discarded in favour of individualised treatment of the offender, directed to his rehabilitation.

In R v TVC [2002] NSWCCA 325 at [13], Sperling J cited Wood J in R v Hoai Vinh Tran [1999] NSWCCA 109:

In coming to that conclusion his Honour made reference to the well-known principle that when courts are required to sentence a young offender considerations of punishment and general deterrence should in general be regarded as subordinate to the need to foster the offender’s rehabilitation … That is a sensible principle to which full effect should be given in appropriate cases. It can have particular relevance where an offender is assessed as being at the cross roads between a life of criminality and a law abiding existence.

In addition to international legal principle, legislation and case law, children and young people also have the benefit of science — neurobiology — to explain their different legal status.

The research available through the field of neurobiology has piqued my interest, particularly developmental neurobiology.

This research has been undertaken over the years to show that the pre-frontal cortex of the brain (the frontal lobes) is the last part of the human brain to develop. The frontal lobes are those parts of the brain associated with identifying and assessing risk, managing emotion, controlling impulses and understanding consequences.⁴⁴

Johnson, Blum and Giedd explain executive function as:

… a set of supervisory cognitive skills needed for goal-directed behaviour, including planning, response inhibition, working memory and attention. Poor executive function leads to difficulty with planning, attention, using feedback and mental inflexibility, all of which could undermine judgment and decision making.⁴⁵

Put simply, according to brain science, a young person is unable to make any rational choice, let alone the rational choice to commit a criminal act. If we take this science at its highest level, it would be remiss to argue that the focus should not be on rehabilitation.

The developmental neurobiology of young people is compounded by intergenerational disadvantage and trauma associated with maltreatment and neglect.

I draw your attention to this research, not to suggest that the findings from neurobiology research exculpate all young offenders from criminal responsibility. Rather, these findings indicate that there is a grey area between right and wrong when considering the culpability of offender.

Ameliorating communication with children and young people

Understanding the factors impacting upon brain development can have many negative implications. One such implication is that this misunderstanding results in a failure to properly communicate with young people.

An understanding of the discrete cognitive processes that differentiate young people from adults is critical to effective communication.

Ensuring that young people understand the legal implications of their offending behaviour may also combat against a distrust with, and disconnection from, the criminal justice system.

Understanding that adolescence is a stage fraught with conflict is persuasively captured by Muncie, who states:

Unlike the nouns “child” and “adult” which refer to definite periods of life, the period identified as “youth” is more nebulous and is normative because it conjures up troubling and emotive images.⁴⁶

This amorphous period of life for all young people is further problematised by the disadvantage suffered by most of the children and young people appearing before the Children’s Court.

The 2009 NSW Young People in Custody Health Survey found that:

46% had a possible intellectual disability or borderline intellectual disability
18% had mild to moderate hearing loss
66% reported being drunk at least weekly in the year prior to being in custody
65% had used an illicit drug at least weekly in the year prior to custody.⁴⁷

Further, as you are all aware, many of the young people appearing before the Children’s Court in the Care jurisdiction, frequently come before the Court in its Criminal jurisdiction later in life.

Dr Judith Cashmore, an eminent psychologist and researcher, has found an established link between childhood maltreatment and adolescent offending.⁴⁸

Dr Cashmore’s research correlates with the research I spoke to in the care section of this paper, regarding trauma and brain development. Her research showed that a number of factors may constitute childhood maltreatment and, consequently, brain development. These factors included: parenting issues, nutrition, health, social interactions and conflict. Additionally, the impact these factors have on brain development may be compounded by instability in the creation of developmental attachments through numerous OOHC placements.⁴⁹

Given that the research shows links between brain development, trauma and criminal offending, it comes as no surprise that communication with children and young people is a discrete area of study in and of itself.

At the “Speaking their language conference”, referred to above, Judge Sexton, of the Victorian County Court provided an informative paper on communicating with children and young people.⁵⁰

Judge Sexton stated:

Children are not “little adults”. They cannot be questioned over an extended period, as adults might be. Responsive answers might be obtained for a time, but after that, there are real issues about the veracity and accuracy of the answers. Challenging a child witness in cross examination is difficult.⁵¹

Judge Sexton has identified problems associated with gratuitous concurrence — agreeing or disagreeing to a proposition because the person being questioned thinks that is what the questioner wants to hear — when asking questions of children and young people, particularly those who have been exposed to trauma. In addition, she acknowledges:

Often adolescents are considered capable of communicating in an adult way, but if they have been subjected to trauma in their lives, there may be an underlying disability which means they are really functioning at the level of an under 12 year old, but will be too embarrassed to admit to not understanding.⁵²

Following a general discussion of the requirements for questioning child witnesses, determining competence and disallowing improper questions under the Victorian equivalent of the Evidence Act 1995,⁵³Judge Sexton referred to a 1988 study analysing the transcript of the cross examination of child witnesses. Judge Sexton drew particular attention to 10 aspects from this study which can impact upon a child witness’s ability to communicate in Court.⁵⁴ What follows is an abridged version of the 10 aspects referred to in Judge Sexton’s paper.

Language

Language used must be appropriate to the age and culture of the child. Some specific words and concepts are only acquired at certain ages. For example, the distinction between “before” and “after” may only be mastered at age 7; between “come” and “go” and “bring” and “take” at between 7 and 8 years of age and between “ask” and “tell” between 7 and 10 years of age.

Next, children’s conceptualisation of time, frequency and ordering of events is gradually acquired. It is therefore necessary to provide concrete anchor points, using times or events that are relevant to the child, such as a birthday or having a broken arm.⁵⁵

Structure of questions

It is important for child witnesses that they have some idea of the topic or direction of the questions. So the use of “signposting” is helpful. For example: “I want to ask you some questions about your father”. Next, for very young children, there should only be one “step” per question. Children under 12 have problems when the questions ask more than one thing at a time. A 5-year-old child cannot deal with more than three brief chunks of information.⁵⁶

Length of questions

A useful “rule of thumb” is the number of words in a question should be equal to the age of the child eg 5 years old = 5 words.⁵⁷

Use of negatives

Generally, children do not understand questions put in the negative until around 11 or 12 years old. Tag questions such as “He didn’t do it, did he?” while appearing to the adult mind simple on the face of it, apparently requires at least seven cognitive operations to answer.⁵⁸ If the answer to the question “He didn’t do it, did he?” is “no”, that could mean that it is not right to say he didn’t do it, but would generally be taken by the adult listener to be the opposite. The question could be easily rephrased as “Did he really do it?”⁵⁹

Cossins states that for example, to answer yes to a negative question does not necessarily mean that the child agrees with the statement — it may mean that the child does not have the capacity to refute it.⁶⁰

Repetitive questioning

Research has shown that repetitive questioning only decreases accuracy, it does not increase it.⁶¹ Young children (to age 10) find persistent questioning very demoralising, particularly when they have previously indicated that they do not know the answer. Young children tend to assume that if the same question is repeated, the original answer must have been incorrect. Additionally, repetitive questioning may cause the child to believe that if the adult says something different to the child’s belief, adults know everything, so they must be right. That is why it is important for the Judicial Officer to reinforce, each time a suggestion is put, that they should agree if they believe what is said is true, and disagree if it is not true.⁶²

Voice and body language

Children, particularly those with language or cognitive difficulties, find it difficult to pick up on visual cues. Procedures designed to make giving evidence easier, such as the use of CCTV, do assist to reduce stress by preventing the child from seeing the defendant, but may also provide opportunities for miscommunication, and counsel may unintentionally appear to the child as intimidating when viewed through a TV screen.

Also, asking questions in a rapid fire manner may lead to a child eventually offering a random response to stop the questioning, and the response may therefore be unreliable.⁶³

Previous versions or other potential inconsistencies

Even adult witnesses find questioning on past versions confusing. For a child witness, there is a potential problem with focussing on trivial inconsistencies and presenting them as indicators of unreliability and lack of truthfulness in the child witness.

The belief that a cross-examiner has uncovered a dishonest and inconsistent witness could, in the case of a child witness, actually mean that cross-examination has produced a confused and/or psychologically stressed child. Importantly, it is known that children may provide different, but nonetheless accurate details about the same event on different occasions of questioning (known as staggered or staged disclosure). So there may be genuine and reliable, yet different, memories in answer to the same questions out of court and in cross-examination.⁶⁴

Ambiguous questions

While tricky for any witness to respond to, ambiguous questions may be even trickier for children.⁶⁵

Questions which challenge the child’s version

Child witnesses find it very difficult being challenged. They expect to come to court and tell their story to the Judge. Instead of a free-flowing narrative, which is the form considered in the literature most likely to be accurate, children find firstly that they are not speaking directly to the Judge about their story; secondly, they can only say things in answer to questions by lawyers, questions that leave out the opportunity to say things they remember but emphasise details that adults think are important.

The challenge is made even more traumatic when the language used is aggressive.⁶⁶

Demanding precise recollection of seemingly obscure facts

A child may feel obliged to answer these questions when they do not actually remember, in the belief that an adult would not be asking the questions if an answer was not expected.⁶⁷

Following a discussion of the types of questions that may confound a child witness, Judge Sexton accepts that it is part of the Judicial Officer’s role and responsibility to intervene when an improper question is asked and cites former Chief Justice of the Supreme Court of NSW, Spigelman CJ in R v TA (2003) 57 NSWLR 444 who affirmed that the protective role of the Judicial Officer toward a witness is “perfectly consistent with the requirements of a fair trial”.⁶⁸

In her conclusion, Judge Sexton states that apart from recognising the impropriety of questions, there are other ways where a Judicial Officer can work with Counsel to avoid the need for intervention. Judge Sexton emphasises her support for the use of the witness intermediary scheme in England and Wales, she cites the case of R v Lubemba [2014] EWCA Crim 2064 at [38]–[45].

It is now generally accepted that if justice is to be done to the vulnerable witness and also to the accused, a radical departure from the traditional style of advocacy will be necessary. Advocates must adapt to the witness, not the other way round. They cannot insist upon any supposed right “to put one’s case” or previous inconsistent statements to a vulnerable witness. If there is a right to “put one’s case” (about which we have our doubts) it must be modified for young or vulnerable witnesses. It is perfectly possible to ensure the jury are made aware of the defence case and all the significant inconsistencies without intimidating or distressing a witness.⁶⁹

I support the witness intermediary scheme and any other model utilised to facilitate the effective co-operation and communication of children and young people. Intermediaries are a distinctly valuable resource that have the potential to revolutionise the adversarial system of criminal justice. As Plotnikoff and Woolfson state: “Intermediaries are the great untold ‘good news’ story of the criminal justice system”.⁷⁰

The Children’s Court’s submission to the NSW Government on the use of a witness intermediary scheme in NSW advocated that additional support was required in order to communicate effectively and ensure an inclusive and engaging process for children and young people.

Witness intermediaries bridge the communication gap between counsel and child witnesses. Intermediaries are independent and owe their duty to the Court, acting in a similar capacity to interpreters by facilitating communication between the witness and counsel. Intermediaries can also play a part in providing advice or utilising creative communication aids to assist counsel and the Court to ensure tailored, appropriate communication, avoid the risk of re-traumatisation or systems abuse and facilitate the fair and transparent administration of justice.

The witness intermediary concept will be piloted in child sexual assault matters in the District Court.

It will be exciting to evaluate the pilot and view the outcomes for improving communication for children and young people in court proceedings. I hope that I will be able to report on it further in the 2017 Regional Conferences.

Recent case law in youth crime

Doli incapax — application of an objective or subjective test

In the matter of RH v Director of Public Prosecutions (NSW) [2013] NSWSC 520, there was no issue as to the relevant facts. It was agreed that RH did commit an aggravated break and enter, the circumstances of aggravation being that he was in company with his cousin S at the time of the offence.

RH was aged 12 at the time of the offence. The only issue in the appeal was whether the evidence before his Honour was sufficient to rebut the presumption of doli incapax in favour of RH.

Hoeben CJ at CL found that the Magistrate had wrongly applied an objective test to the question of the young person’s capacity, by basing his assessment of the child’s capacity according to that of a “normal 12 year old”.⁷¹

Hoeben CJ at CL stated:

It was common ground that the relevant test was a subjective one and concerned the state of mind of the particular minor. It could not be applied on the basis of what a normal child of 12 would have known or thought.⁷²

Hoeben CJ at CL went on to consider whether by reference to the evidence as a whole, it was still open to his Honour to find that the presumption had been rebutted.⁷³

He endorsed the view of Hodgson JA in BP v R: SW v R [2006] NSWCCA 172, “there should not be a narrow view taken on what are circumstances of the offence that can operate as evidence”.⁷⁴

Hodgson JA in BP v R; SW v R found that:

For example, in the present case, assuming the jury accepted LD’s evidence that she was crying and screaming and struggling and asking BP to stop, these would in my opinion be factors that could support the inference that BP knew that what he was doing was causing great distress to another human being and as such was seriously wrong ...⁷⁵

In RH v Director of Public Prosecutions (NSW), Hoeben CJ at CL found the evidence sufficient to establish beyond a reasonable doubt that doli incapax had been rebutted. Evidence included: that RH had used a jemmy to break into the station, which required some planning; and that particular words were used by RH when describing to his cousin what he had done.

RH appealed to the NSW Court of Appeal in the matter of RH v Director of Public Prosecutions (NSW) (2014) 244 A Crim R 221, on the basis of error. The NSWCA upheld the appeal although the court was not unanimous as to the orders that should be made. The basis for the error was that after deciding that there was sufficient evidence before the court to rebut the presumption of doli incapax, Hoeben CJ at CL erred by applying s 55(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) to dismiss the appeal.

McColl JA, determined that the court should set aside the conviction and remit the matter to the Local Court for redetermination in accordance with the court’s orders.

Basten JA at [43] approved Hoeben CJ at CL’s finding that the children’s magistrate had erred, by applying an objective and not a subjective test:

On an appeal limited to a question of law the findings as to error dictated the outcome, unless it could be said that, applying the correct test, there was only one conclusion open to the magistrate. The Chief Judge did not reach that conclusion, nor could he have done so on the material before him. Accordingly, the only course open was to set aside the conviction. The fact that it was open on the evidence for the Magistrate to conclude beyond reasonable doubt that the applicant had criminal capacity merely meant that the matter could be remitted for further hearing, rather than the charge being dismissed. It would have been open to the Chief Judge to set aside the decision and remit it pursuant to s 55(1)(b); that course was not taken.⁷⁶

Accordingly, the appeal was allowed. However, given that 4 years had passed since the commission of the crime, Basten JA held that:⁷⁷

In these circumstances, the administration of justice would not be served by returning the matter to the Local Court with an invitation to the parties to re litigate the issue, nor would it be sensible to invite the magistrate to re-decide the case, more than two years after he had heard the evidence and four years after the conduct occurred.

Doli incapax — where several counts and presumption is rebutted on an earlier count

In the matter of RP v R (2015) 90 NSWLR 234, the Court of Criminal Appeal considered whether rebutting the presumption on an earlier count would take effect to rebut the presumption for later counts.

The facts are summarised below.

The applicant stood trial at Wagga Wagga District Court on an indictment containing four counts of sexual assault alleged to have been committed upon his younger brother TP.

The applicant pleaded not guilty to all counts on the indictment. The sole issue at trial was doli incapax. The applicant was aged between 11 years 6 months and 12 years 3 months at the time of the offending.

It was accepted by counsel appearing for the applicant that if the trial Judge found that the presumption of doli incapax had been rebutted beyond reasonable doubt by the Crown in relation to count 2, this would mean that the presumption had also been rebutted beyond reasonable doubt in relation to counts 2, 3 and 4 as it was accepted that they occurred later in time. It was also accepted that the only issue for determination was that of doli incapax.

The applicant sought leave to appeal in NSWCCA on the grounds that:

Ground 1: the trial Judge erred in finding that he was satisfied that the evidence of circumstances surrounding the commission of count 2 established beyond reasonable doubt that the accused knew that what he was doing was seriously wrong and that no other rational inference arose;

Ground 2: the verdicts in counts 3 and 4 are also unreasonable;

Ground 3: the trial Judge erred in finding that “as a matter of logic” the accused must be guilty of counts 3 and 4.

The decision by Davies J is instructive, as he considered what approach should be taken when dealing with a ground relating to unreasonable verdicts (as in Grounds 1 and 2).

Justice Davies also considers the issue of doli incapax (Ground 3). My discussion of this case will centre on Ground 3. Davies J cites the trial Judge’s reasons for finding that the presumption of doli incapax was rebutted as follows:⁷⁸

It is clear that the accused knew that the Complainant did not want to engage in the relevant act even before it occurred, that he used force upon the Complainant to commit it, and that he put his hand over the Complainant’s mouth in an obvious attempt to stop him calling out, no doubt to avoid detection.

During the act the Complainant was also crying and in pain and was trying to tell the accused to stop despite his mouth being covered, but the accused would not and persisted in the act for some time. I am satisfied beyond reasonable doubt by the obvious close proximity of the accused to the Complainant during the act that he was aware that what he was doing was causing great distress to another human being but nevertheless continued the act for a significant period, further, the accused only ceased the assault when an adult arrived back home at the residence. He then told the Complainant not to say anything. In my view the accused is obviously extremely concerned that his conduct would be discovered.

These facts establish much more than a belief in the accused that what he was doing was naughty or mischievous. They establish clearly, and in my view beyond reasonable doubt, that the accused knew at the time that the act he was committing upon the Complainant was seriously wrong as understood. [Emphasis added.]

As I foreshadowed above, the critical issue for consideration in this matter was Ground 3: using the finding for count 2 in respect of counts 3 and 4. In the trial Judge’s judgment, having found the presumption had been rebutted in respect of Count 2 (above), the trial Judge said:⁷⁹

It follows from Ms Mendes’ concession and as a matter of logic that the accused must also be guilty of counts 3 and 4 and I accordingly find him guilty of such counts.

The concession was:⁸⁰

MENDES ... The submission is this, that if your Honour found that count 2 was made out beyond reasonable doubt, then it would flow from that decision that verdicts of guilty would be entered with respect to counts 3 and 4.

And again,⁸¹

MENDES ... if your Honour was satisfied beyond reasonable doubt with respect to count 2 at some later stage, there would be a flow on effect.

The reasoning was as follows:⁸²

The enquiry on each count is whether the Applicant knew that the act charged was seriously wrong. In relation to count 3 the act charged was the same as charged in relation to count 2. Although surrounding circumstances such as the Complainant crying or being forcibly thrown down, or having his mouth covered by the Applicant’s hand all contributed to the conclusion that the presumption was rebutted, the absence of those circumstances in count 3 does not have effect that the Applicant did not know that the act charged in count 3 was not seriously wrong. Although it is the Applicant’s state of mind which must be examined it could not rationally be inferred that because the act was carried out less forcefully or with less resistance from the Complainant the Applicant’s state of mind which must be examined it could not rationally be inferred that because the act was carried out less forcefully or with less resistance from the Complainant the Applicant could have believed that it was not seriously wrong in the light of what he had done in relation to count 2. The surrounding circumstances in relation to count 2 demonstrated that the Applicant knew that the act charged was seriously wrong. When he committed the same act in relation to count 3 the absence of a number of the accompanying circumstances does not detract from his knowledge that the act itself was seriously wrong.

Justice Davies separates Counts 2 and 3 from Count 4:⁸³

[79] The position with count 4 is completely different. The same act was not involved. There was no direct touching of genitals. The evidence was that there was apparently no resistance from the Complainant until after about five minutes when he said that he was getting sick of what the Applicant was doing. At that point the Applicant stopped. It would not be unreasonable to infer that the Applicant might have thought that the Complainant consented to what he was doing. At that point the Applicant stopped. It would not be unreasonable to infer that the Applicant might have thought that the Complainant consented to what he was doing. That consent was only relevant to the issue of whether the Applicant thought that what he was doing was seriously wrong. It is difficult to see how what had earlier taken place, that is, the acts involved in counts 2 and 3 could throw any light on a conclusion about whether the Applicant thought what he did in respect to count 4 was seriously wrong.

[80] It was not open to the Trial Judge to find that the presumption had been rebutted in respect of count 4. The determination of guilt was unreasonable and the verdict should be set aside.⁸⁴

Considerations when sentencing young offenders

In the matter of R v MF [2014] NSWDC 136, Haesler J articulates the relevant law to consider when sentencing children and young people. It is implicit in this judgment that sentencing children and young people is a fraught issue. I strongly encourage you to read this decision, as it brings to the fore critical issues relevant to exercising Children’s Court jurisdiction.

In this matter, MF was convicted of causing grievous bodily harm with intent to cause grievous bodily harm. The Director accepted that M (MF’s uncle) coerced the young person MF to pour a flammable liquid over Ms K and set her on fire. His Honour considered the relevant sentencing principles under the heading “youth and immaturity”.⁸⁵

Significantly, Haesler J stated:⁸⁶

In recent years the focus has shifted from doing what is in the best interests of the child, to imposing on children adult penalties for what the courts regard as adult crimes. Two themes have emerged: one recognises the strong community interest in the rehabilitation of an immature young man whose criminal behaviour is not well formed; the other stresses the protective function of the court, particularly where the offending is objectively very serious.

His Honour went on to state that the tension between the need to rehabilitate young offenders, with holding them accountable for their crimes in an “adult” way, is highlighted in the matter of R v Pham & Ly (1991) 55 A Crim R 128:⁸⁷

… A court must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime ... must be kept ... in mind otherwise the protective aspect of the criminal court’s function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes ...

His Honour made the point that even for crimes that fall into the category of objectively serious offences, sentencing young people harshly according to the protective aspects of sentencing will often have a greater adverse impact on the community in the long term, than rehabilitating the young person. He cited⁸⁸ with approval the New Zealand Court of Appeal decision in Slade v The Queen [2005] NZCA 19 which refers to a psychologists report that was accepted by the NZCA and referred to in R v Elliott and Blessington (2006) 68 NSWLR 1 at [127]:⁸⁹

[43] It is widely accepted that adolescents do not possess either the same developmental level of cognitive or psychological maturity as adults (Steinberg & Scott, 2003). Adolescents have difficulty regulating their moods, impulses and behaviours (Spear, 2001). Immediate and concrete rewards, along with the reward of peer approval, weigh more heavily in their decisions and hence they are less likely than adults to think through the consequences of their actions. Adolescents’ decision-making capacities are immature and their autonomy constrained. Their ability to make good decisions is mitigated by stressful, unstructured settings and the influence of others. They are more vulnerable than adults to the influence of coercive circumstances such as provocation, duress and threat and are more likely to make riskier decisions when in groups. Adolescents’ desire for peer approval, and fear of rejection, affects their choices, even without clear coercion (Moffitt, 1993). Also, because adolescents are more impulsive than adults, it may take less of a threat to provoke an aggressive response from an adolescent.

Haesler J also referred to the remarks of Allen J in R v Webster (unrep, 15/7/91, NSWCCA), (the murder of a teenage girl by a young man):⁹⁰

The protection of the community does not involve simply the infliction of punishment appropriate to the objective gravity of the crime. There are other considerations as well — principally although by no means only, the deterrence of others ... and the rehabilitation of the offender. The community have a real interest in rehabilitation. The interest is to no small extent relates to its own protection ... The community interest in respect to its own protection is greater where the offender is young and the chances of rehabilitation for almost all of the offender’s adult life, unless he is crushed by the severity in sentence, is high.

Ultimately, his Honour weighed MF’s youth, vulnerability, background, assistance to authorities against the extreme harm done to Ms K and decided that given the circumstances, no sentence other than full-time imprisonment is available. His Honour convicted MF and sentenced him to a non-parole period of 3 years with a head sentence of 6 years.⁹¹

His Honour summarised his reasons as follows:⁹²

While many factors raised in mitigation overlap I have taken care not to double count them. Here also, many of the purposes of sentencing point in differing directions. While the need to promote MF’s rehabilitation and recognise his youth, remorse and assistance are compelling, he must also be held accountable for his actions. What he did must be denounced and the harm, the terrible harm, done to Ms K properly recognised.

Conclusion

The Children’s Court is committed to the needs of children, young people and families and, as President, I am dedicated to education and improvement. I hope that you are able to use this paper as a reference resource and, as a corollary, that this paper enables you to have a more detailed understanding of this complex jurisdiction. My hope is that it will empower you with enthusiasm to learn more.

¹President of the Children’s Court of NSW, District Court Annual Conference 2016, Wollongong, Wednesday 29 March 2016.

²I acknowledge the considerable help and valuable assistance in the preparation of this paper by the Children’s Court Research Associate, Paloma Mackay-Sim.

³See also Judge M Marien, “‘Cross-over kids’ – childhood and adolescent abuse and neglect and childhood offending”, paper originally presented at the South Pacific Conference of Youth and Children’s Courts Annual Meeting, 25-27 July 2011, Vanuatu (and updated for the Third National Juvenile Justice Summit 2012, 27 March 2012, Melbourne).

⁴S Herridge, “Non-accidental injury in care proceedings — a digest for practitioners”, [2009] CLN 6 at p 11.

⁵ In re O & N (minors) (FC) In re B (minors) (2002) (FC) [2003] UKHL 18 at [12].

⁶M v M (1988) 166 CLR 69 at [25].

⁷Johnson v Page [2007] FamCA 1235.

⁸Justice S Austin, “The enigma of unacceptable risk”, paper presented at the 2015 Hunter Valley Family Law Conference, 31 July 2015, Hunter Valley NSW.

⁹Judicial College of Victoria conference, Speaking their language: young people and the courtroom, 19–20 October 2015.

¹⁰K Hogan, “The impact of trauma”, paper presented at the Judicial College of Victoria conference, Speaking their language: young people and the courtroom, 19 October 2015.

¹¹ibid.

¹²ibid.

¹³Professor P Snow, “Oral language competence: implications for the legal interface”, paper presented at the Judicial College of Victoria conference, Speaking their language: young people and the courtroom, 20 October 2015.

¹⁴ibid.

¹⁵ibid n 13.

¹⁶Children and Young Persons (Care and Protection) Act 1998: s 98(3).

¹⁷Children and Young Persons (Care and Protection) Act 1998: s 87(1).

¹⁸Re June (No 2) [2013] NSWSC 1111 at [186]–[187].

¹⁹ Department of Family and Community Services (NSW) and the Bell-Collins Children [2014] NSWChC 5.

²⁰Bell-Collins Children v Secretary, Department of Family and Community Services [2015] NSWSC 701 at [33].

²¹ibid at [34].

²²In the matter of “Pamela” [2003] CLN 3 at p 4.

²³Re Mary [2014] NSWChC 7 at [33].

²⁴Jabaltjari v Hammersley (1977) 15 ALR 94 at 98.

²⁵Commission for Children and Young People, Inquiry into compliance with the intent of the Aboriginal Child Placement Principle (ACPP) in Victoria, 2015, at p 7.

²⁶Drake v Drake [2014] FCCA 2950 at [187].

²⁷ibid at [191].

²⁸ibid at [189].

²⁹ibid n 24 at [192].

³⁰ibid at [195].

³¹ibid at [238].

³²R Loeber, DP Farrington and D Petechuk, “Child delinquency: early intervention and prevention”, Child Delinquency Bulletin Series, US Department of Justice, Office of Juvenile Justice and Delinquency Prevention, 2003, Washington DC at p 9.

³³P Delfabbro and D Day, Programs for anti-social minority youth in Australia and New Zealand — a literature review, report prepared for the Centre for the Evaluation of Social Services, Stockholm, Sweden, 2003 at p 47.

³⁴J Bargen, “Embedding diversion and limiting the use of bail in NSW: a consideration of the issues related to achieving and embedding diversion into juvenile justice practices”, (2010) 21(3) Current Issues in Criminal Justice 467 at 477.

³⁵K Nunn, “Decision-making in out-of-home care children who offend”, presented at the Children’s Court magistrates section 16 conference, November 2013.

³⁶K Nunn, “Bad, mad and sad: rethinking the human condition in childhood with special relevance to moral development” (2011) 47 Journal of Paediatrics and Child Health 624 at 625.

³⁷ibid n 33.

³⁸Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93 at [79].

³⁹Community Services Commission, The drift of children in care into the criminal justice system: turning victims into criminals, 1996, at pp 16–20; Wards and juvenile justice, 1999.

⁴⁰P van de Zandt and T Webb, High service users at Legal Aid NSW: profiling the 50 highest users of legal aid services, Legal Aid NSW, 2013.

⁴¹C Cuneen and R White, Juvenile justice: youth and crime in Australia, chapter 2 on “Theories of juvenile offending”, 2 edn, Oxford University Press, 2002, pp 32–61 at p 46.

⁴²UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations.

⁴³UN General Assembly, United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“the Beijing Rules”): resolution adopted by the General Assembly, 29 November 1985.

⁴⁴EC McGuish et al, “Psychopathic traits and offending trajectories from early adolescence”, 2014 (42(1)) Journal of Criminal Justice pp 66–76.

⁴⁵SB Johnson, RW Blum and JN Giedd, “Adolescent maturity and the brain: the promise and pitfalls of neuroscience research in adolescent health policy”, 2009 (45(3)) Journal of Adolescent Health pp 216–221 at p 218.

⁴⁶G Muncie, Youth and Crime, 3rd edn, Sage, 2009, at p 4.

⁴⁷D Indig et al, 2009 NSW young people in custody health survey: full report, Justice Health and Juvenile Justice, 2011.

⁴⁸J Cashmore, The link between child maltreatment and adolescent offending: systems of neglect of adolescents, Australian Institute of Family Studies, Family Matters No 89, 2011.

⁴⁹ibid.

⁵⁰Judge M Sexton, “Communicating with children and young people”, paper presented at the Judicial College of Victoria conference, Speaking their language: young people and the courtroom, 19 October 2015.

⁵¹ibid at p 1.

⁵²ibid at p 4.

⁵³Evidence Act 2008 (Vic).

⁵⁴Sexton above n 49 at p 6 citing M Brennan and R Brennan, Strange language: child victim witnesses under cross examination (Wagga Wagga: CSU Literacy Studies Network, 1988). As noted in fn 282, AIJA Bench book for children giving evidence in Australian courts, 2015, pp 71–4.

⁵⁵Above n 49 at pp 7-8.

⁵⁶ibid at pp 8–9.

⁵⁷ibid at p 10.

⁵⁸ibid at p 10 citing A G Walker, Handbook on questioning children: a linguistic perspective, 2nd edn, American Bar Association (ABA) Centre on Children and the Law, p 10. As noted in fn 210 of the AIJA Bench book for children giving evidence in Australian courts, 2015.

⁵⁹ibid n 49 at p 11.

⁶⁰ibid citing A Cossins, “Cross-examination in child sexual assault trials: evidentiary safeguard or an opportunity to confuse?” [2009] MULR 3.

⁶¹ibid citing K J Saywitz, “Developmental underpinnings of children’s testimony”, in HL Westcott, GM Davies and R Bull (eds), Children’s testimony: a handbook of psychological research and forensic practice, Wiley, 2002, p 8.

⁶²ibid n 49 pp 11–12.

⁶³ibid p 12.

⁶⁴ibid at p 13.

⁶⁵ibid at p 14.

⁶⁶ibid at p 14.

⁶⁷ibid at p 15.

⁶⁸R v TA (2003) 57 NSWLR 444 per Spigelman CJ at 446.

⁶⁹Above n 49 at p 21.

⁷⁰J Plotnikoff and R Woolfson, Intermediaries in the criminal justice system: improving communication for vulnerable witnesses and defendants, (with a foreword by Lord Thomas of Cwmgiedd, Lord Chief Justice of England and Wales), University of Bristol, Police Press, 2015, at p 304.

⁷¹RH v Director of Public Prosecutions (NSW) [2013] NSWSC 520 at [23].

⁷²ibid at [22].

⁷³ibid at [25].

⁷⁴ BP v R; SW v R [2006] NSWCCA 172 at [30].

⁷⁵ibid at [30].

⁷⁶RH v Director of Public Prosecutions (NSW) [2014] NSWCA 305 at [43].

⁷⁷ibid at [44].

⁷⁸RP v R (2015) 90 NSWLR 234 at [56].

⁷⁹ibid at [73].

⁸⁰ibid at [74].

⁸¹ibid at [75].

⁸²ibid at [78].

⁸³ibid at [79].

⁸⁴ibid at [80].

⁸⁵R v MF [2014] NSWDC 136 at [52]–[61].

⁸⁶ibid at [54].

⁸⁷ibid at [55] citing R v Pham & Ly (1991) 55 A Crim R 128.

⁸⁸ibid at [56].

⁸⁹ibid at [56].

⁹⁰ibid at [58].

⁹¹ibid at [69].

⁹²ibid at [73].