The Joint Criminal Rules 2022 (SA) apply to the criminal jurisdiction of the Court. Other jurisdictions of the Youth Court are governed by the Uniform Special Statutory Rules 2022 (SA) . See the Courts SA website for the relevant Rules, Practice Directions, and Forms.
Appearance of youth in custody by audio visual link
Unless the Court otherwise orders, a defendant or youth who is in custody will appear before the Court for any hearing other than one governed by rule 38.4 of the Joint Criminal Rules 2022 (SA) by audio visual link or, if the Court so orders, by audio link. A party may however object to the use of an audio visual link or audio link in respect of a hearing, by filing a Form 95 Notice of Objection at least 14 days before the relevant hearing, or by oral application at a previous hearing [r 38.3]. A notice of objection may be determined at the discretion of the Court at either a hearing in court or in chambers, without hearing from any party, or at a hearing using an audio visual link or audio link. If during the course of a hearing by audio visual link or audio link counsel is required to take instructions on a matter that could not reasonably have been anticipated, counsel will where possible be provided with access to a private link to the custodial institution in which the defendant or youth is held. Another person must not listen to, intercept or record a private communication for this purpose [r 38.3(5)].
Appearance of defendant or youth in custody physically
Unless the Court otherwise orders, a defendant or youth who is in custody will appear before the Court physically at trial. Unless the Court otherwise orders, a defendant or youth who is in custody on a charge of an indictable offence will appear before the Court physically at a sentencing hearing and upon sentencing. See:
The appearance of other participants (parties, lawyers or other representatives and witnesses) is governed by rule 38.5 of the Joint Criminal Rules 2022 (SA). The Court may direct or permit the participants to appear remotely by audio visual link or audio link. Such an application must be made orally at a previous hearing, or by a Form 92D Interlocutory Application for Hearing by Audio or Audio Visual Link. An application must be made in sufficient time before the hearing to allow the Court to decide whether to allow the request and, if so, make appropriate arrangements. A party who objects to the use of an audio visual link or audio link, or wishes to make submissions about it, must file and serve on all other parties a Form 85 Notice of Objection within 3 days after service of the application.
If the Court has granted an application to appear at a hearing remotely by audio visual link or audio link, and it is unable to contact a party or lawyer or other representative at any time within 15 minutes after the time appointed for the hearing at the nominated facility or by the nominated telephone number, the party will be regarded as having failed to appear at the hearing for the purposes of the Rules [r 38.5(5)].
Youth Court hearings are not open to the public [r 38.6(2)]. Section 24(1) of the Youth Court Act 1993 provides that no person may be present at any sitting of the Court except certain classes of persons, including parties, a guardian or advisor of the youth, lawyers for the parties, alleged victims and support persons, and a genuine representative of the news media. The Court may, on its own initiative or on application by any person, order that specified persons be excluded from a hearing under section 24(2) of the Youth Court Act 1993 [r 38.7(2)].
The Magistrates Court Rules 1992 (SA) were revoked on 29 August 2022.
The Joint Criminal Rules 2022 (SA) are subject to any contrary provisions in the Young Offenders Act 1993 (SA) or the Youth Court Act 1993 (SA). The Joint Criminal Rules 2022 (SA) will apply to the extent that they are relevant in the criminal jurisdiction of the Court, and are to be read together with the Uniform Special Statutory Rules 2022 (SA).
From time to time the Senior Judge may issue Practice Directions governing procedural requirements and court etiquette.
There are practice directions for the criminal jurisdiction of the Youth Court - these can be found on the Courts SA website.
Practice Direction 1 of 2003 - Case Flow Management, is concerned with the listing and disposition of criminal matters under the Young Offenders Act 1993 (SA). Of particular note:
First court appearance
Second court appearance
Third court appearance
| ENSURE COMPLIANCE WITH PRACTICE DIRECTIONS |
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| It is important that the duty solicitor know and observe these practice directions and ensure that their matters are prepared in compliance with them. |
As already mentioned [see Applying for a suppression order] an objective of the Young Offenders Act 1993 (SA) is to 'secure for youths who offend against the criminal law the care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential’ [see Young Offenders Act 1993 s 3(1)]. This must be balanced against the need for youths to be aware of their obligations under the law and the consequences of breaching the law, and the need for the community to be protected against violence and wrongful acts [see s 3(2)].
The Young Offenders Act 1993 (SA) sets out a three-tiered system of juvenile justice. There are two tiers of pre-court diversion which apply where a youth admits to offending and is a first offender or a relatively low-level offender. These are formal and informal police cautions and family conferences [see ss 6, 7 and 9-12]. Offences dealt with by police caution or family conference are not formally charged and do not come before the Youth Court unless a youth fails to attend a family conference, or does not admit the offence, or subsequently fails to comply with an undertaking as to penalty.
Hearings conducted by the Youth Court are the third tier of the juvenile justice system. The Youth Court hears and determines matters for which charges have been formally laid and include:
Breaches of undertakings given in the course of a formal police caution or a family conference may result in a charge or charges being laid and referred to the Youth Court. The Youth Court also has a discretion to refer matters to be dealt with by way of formal police caution or family conference where appropriate [see Young Offenders Act 1993 s 17(2)]. Examples of this are where a youth admits allegations of minor or first offending which had previously been disputed, or agrees to attend diversionary proceedings despite prior failure(s) to attend
| THE ROLE OF DUTY SOLICITOR |
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| Where the duty solicitor is instructed in relation to a disputed matter involving minor and/or first time offending, the youth should be advised that the matter may still be dealt with by way of diversion where theyinstruct that the facts in the allegations are admitted.
Negotiations with the police prosecutor at court are frequently successful in resolving disputes of fact to enable the matter to be referred back to a police caution or family conference with the youth admitting to the facts as agreed. The youth should be advised that matters which are admitted at a formal police caution or family conference are recorded as prior criminal offending and will be brought up in any further Youth Court proceedings, but they will not be alleged in adult matters. [see Young Offenders Act 1993 (SA) s 58 ].
The youth should be clearly advised about the availability of diversionary alternatives to court. However, you should avoid the appearance of inducing or pressuring the youth to admit to a disputed offence for the sake of convenience, bearing in mind that frequently he or she may be anxious to resolve matters this way. |
| SIGNED INSTRUCTIONS |
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It is a good idea for the duty solicitor to obtain signed instructions from the youth if they change instructions and wish to admit the offence for referral back to police caution or family conference. |
Youth
A youth is defined as a person of, or above the age of ten years but under the age of eighteen years on the date of the alleged offence [see Young Offenders Act 1993 s 4 for definition]. Where the Court does not have satisfactory evidence of the age of a youth against whom proceedings have been brought, the Court may make its own estimate of the age of the youth and act on the basis of that estimate [see s 57].
In accordance with the Young Offenders Act 1993 (SA), a person under the age of ten years cannot commit a criminal offence [see s 5].
In relation to Commonwealth offences, a child under ten years cannot be liable for an offence against a law of the Commonwealth [see Crimes Act 1914 (Cth) s 4M]. A child aged ten years or more but under fourteen years can only be liable for an offence against a law of the Commonwealth if the child knows that his or her conduct is wrong [see Crimes Act 1914 (SA) s 4N(1)]. Whether a child knows that his or her conduct is wrong is one of fact for which prosecution have the burden of proof [see s 4N(2)].
| THE COMMON LAW DOCTRINE OF DOLI INCAPAX |
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The duty solicitor should be aware of the common law doctrine of doli incapax, whereby a minor between the ages of 10 and 14 is presumed incapable of criminal conduct. The presumption must be rebutted by prosecution evidence that the youth had guilty knowledge that he or she was doing wrong in committing the actus reus (physical element of the offence) [see R v JTB [2009] 3 All ER 1 as an example]. Despite this presumption, the lawyer with ongoing conduct of the youth’s matter should notify the Court if there may be an issue with doli incapax as soon as practicable and make expeditious inquiries [Joint Criminal Rules 022 (SA) r 67.3]. The doctrine arises relatively rarely in practice. However, it may be an issue where the youth’s upbringing of neglect or specific culturally-condoned behaviours suggests that the youth may lack knowledge of ordinary moral notions. Where there appears to be a possibility that the presumption may not be capable of rebuttal on the prosecution case, you should advise the youth to refrain from entering a plea of guilty until senior legal advice is sought. Rebuttal evidence could include, for example, admissible proof of prior convictions for similar offending or inferences capable of being drawn from statements made by the youth in a record of interview or elsewhere. |
The Youth Justice Administration Act 2016 (SA) commenced on 1 December 2016. The objects of the Act are to provide for the administration of the juvenile detention scheme and to ensure the safe, humane and secure management of youths held in training centres within South Australia.
The Youth Justice Administration Act 2016 (SA) and the Young Offenders Act 1993 (SA) are companion pieces of legislation and should be read together and construed as if they were a single Act [Youth Justice Administration Act 2016 (SA) s 5(1)]. Terms used in both Acts have the same meaning unless otherwise indicated [s 5(2)].
Under section 4 of the Youth Justice Administration Act 2016 (SA) the term ‘resident’ is used to refer to a youth detained in a youth training centre and this terminology is used in the following section.
The Act creates the position of Training Centre Visitor.
The role of the Training Centre Visitor encompasses the following responsibilities [s 11]:
The Training Centre Visitor is required to give proper weight to the views of training centre residents and to have particular regard to the needs of residents who are under the guardianship of the Minister, Aboriginal or Torres Strait Islander youths or residents with a physical, psychological or intellectual disability.
A resident of a training centre; a guardian, relative or carer of a resident; or any other person providing support to a resident may make a request to contact the Training Centre Visitor. Any such request must be made to the Chief Executive who must advise the Training Centre Visitor of the request within 2 days of receipt of the request [s 17].
The Act also provides for the creation of a Charter of Rights for Youths Detained in Training Centres. Any person exercising functions or powers under the Act must have regard to the terms of the Charter in any dealings with a youth who is in detention. A copy of the Charter must be provided to a training centre resident on their arrival.
In addition to being provided with a copy of the Charter, the following must take place on admission into a training centre:
The assessment must take into account the following:
Assessments must occur at least once in each prescribed period whilst the youth is resident in a training centre [s 23(4)] and and if no period is prescribed then a period of no longer than 3 months.
Under section 26 of the Act the Chief Executive may make rules relating to the management of a training centre and regulating the conduct of residents in training centres. Any such rules must be published for the benefit of residents and, where a resident is illiterate or non-English speaking, a reasonable attempt must be made to make the rules known to them.
Residents who are of compulsory school or education age are to be encouraged to continue their education [s 27].
The use of safe rooms is regulated by the Act under section 28. A resident may only be detained if an employee of the centre believes on reasonable grounds that:
Regardless of the above, a resident who is under the age of 12 years must not be detained in a safe room.
The manager of the centre must be informed as soon as is reasonably practicable if any resident is detained in a safe room.
For residents aged between 12 and 14 years detention must be for no longer than 24 hours.
If a resident is aged 15 years or over the detention can be for no longer than 48 hours.
Residents must be closely supervised whilst detained in a safe room and observed at intervals of not longer than 5 minutes. All observations must be recorded in writing and records are to kept. A written account of the incident that lead to the detention must also be provided by the youth. If the resident cannot write they can nominate their case manager or case worker, a lawyer, the Guardian for Children and Young People, the Training Centre Visitor, a cultural advisor, a parent, guardian or carer to write the account on their instructions.
The Act prohibits the following forms of treatment [s 29]:
Isolation
Regulation 6 of the Youth Justice Administration Regulations 2016 prescribes the circumstances under which a resident of a training centre may be isolated by being placed in a locked room, that is, where a training centre employee believes on reasonable grounds that:
Isolation (within the resident’s room) may occur at the request of the resident themselves, or if they are ill. If isolation occurs under these circumstances, the resident must be released upon their request.
Isolation of a resident must not be used as a punishment measure and must not contravene the resident’s rights under the Charter of Rights for Youths Detained in Training Centres. It must also not act so as to limit the resident’s ability to communicate with employees of the centre at any time.
During the period of isolation the resident must be closely supervised and observed at intervals of not longer than 15 minutes. Observations must be recorded.
The manager of the training centre must ensure that a record is kept noting the name and age of the resident; the dates and times that the isolation began and ended; the reason for the isolation; the name of the employee who ordered the isolation and any action taken before the resident was isolated.
Length of isolation period
The manager of the centre must be information if isolation occurs for a period greater than 30 minutes.
Isolation must not continue for longer than is reasonably necessary under the circumstances or for longer than 3 hours unless the manager of the centre approves a longer period.
Where a resident is isolated for a period greater than 3 hours the isolation must not continue for longer than 24 hours unless the manager of the centre considers that the circumstances are exceptional and isolation for the longer period has been approved by the Chief Executive.
Segregation
Regulation 7 specifies that segregation may only occur on the following grounds:
As with isolation, segregation cannot be used to the punish the resident nor can it be used to limit the ability of the resident to communicate with employees of the centre at any time or limit access to exercise periods or contact with visitors (beyond what is normally allowed for the resident).
Contact with other residents cannot be restricted for more than 22 hours in any 24 hour period unless it would be detrimental to the wellbeing of the resident or other residents.
Where a resident is segregated a parent, guardian or carer must be informed as soon as reasonably practicable. Where a resident is under 12 years of age the Training Centre Visitor must be informed.
Use of mechanical restraints (reg. 8 of the Youth Administration Regulations 2016)
A resident may only be restricted by means of a mechanical restraint of a kind approved by the Chief Executive and where an employee of the centre believes on reasonable grounds that:
The use of a mechanical restraint is a last resort option and must not be used to punish a resident or to contravene the resident’s rights under the Charter of Rights for Youths Detained in Training Centres.
Under section 33 an employee may only use such force as is reasonably necessary in the following instances:
Where force is used a written report must be provided to the manager of the training centre from the employee as well as an account of the incident prepared by the resident.
A minor offence is an offence which should, in the opinion of the police officer in charge of the investigation of the offence, be dealt with as a minor offence because of:
[see Young Offenders Act 1993 (SA) s 4 for definition]
A minor offence is defined by reference to the subjective assessment of the police officer in charge of the investigation of the offence. That assessment effectively determines whether an admitted offence is diverted to an informal or formal police caution, a family conference, or whether charges for the offence(s) are laid and the matter referred to the Youth Court for determination. Such an assessment will depend on whether:
Part 2 of the Young Offenders Act 1993 (SA) provides for pre-court diversion for minor offences by way of informal and formal police caution.
Section 6(1) of the Young Offenders Act 1993 (SA) provides that where a youth admits the commission of a minor offence, and a police officer is of the opinion that the matter does not warrant any formal action, the police officer may informally caution the youth against further offending. Where an informal caution is given:
Section 7 of the Young Offenders Act 1993 (SA) provides that where a youth admits the commission of a minor offence and the police officer is of the opinion that the matter warrants a formal action, such as a formal caution or family conference, the police officer must first explain to the youth:
The explanation and signing of an admission by the youth should be undertaken, where practicable, in the presence of a guardian of the youth or an adult person nominated by the youth who has had a close association with the youth or has been counselling, advising or aiding the youth [see s 7(3)].
In the exercise of a formal caution, the police officer must explain to the youth the nature of the caution and the fact that evidence of the caution may be treated as evidence of commission of the offence, if the youth is subsequently dealt with in court for the offence [see Young Offenders Act 1993 (SA) s 8(2)(a)]. In addition, the caution must be administered, where practicable, in the presence of a guardian of the youth or an adult person nominated by the youth who has had a close association with the youth or has been counselling, advising or aiding the youth [see s 8(2)(b)]. The caution must be put into writing and acknowledged by the youth in writing [see s 8(2)(c)].
The police officer must take all reasonable steps to give the guardians of the youth an opportunity to make representations with respect to the matter [see s 8(3)]. The police officer must consult with the victim as to whether he or she wishes to be informed of the identity of the offender and how the offence has been dealt with [see s 8(9)].
| ADVICE RELATING TO FORMAL POLICE CAUTIONS |
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| The duty solicitor may need to advise a youth or their guardian about the nature and consequences of a formal police caution to help them decide whether it is appropriate to use this “out-of-court” method to resolve the matter. |
Section 8 of the Young Offenders Act 1993 (SA) provides the powers and sanctions available to a police officer in relation to a formal police caution. In addition to administering a formal caution against further offending, the police officer may also require the youth to enter into an undertaking to:
Any undertaking must be signed by the youth, a representative of the Commissioner of Police, and if practicable, the youth’s parents or guardians [see s 8(6)(a)]. An undertaking has a maximum duration of three months [see s 8(6)(b)].
If a youth is cautioned, and there are no further requirements, or all requirements made are complied with, the youth is not liable for prosecution for the offence [see s 8(8)].
As a matter of practice, a formal police caution is delivered by a senior police officer in uniform in the presence of the youth’s guardian or an adult person associated with the youth. It need not be given at a police station and may take place, for example, at the youth’s home, school, or where a matter has proceeded at the Court but then been referred back to a formal police caution under section 17(2) of the the Young Offenders Act 1993 (SA), in the precincts of the Court itself. Before a caution can be delivered, the allegations must be admitted by the youth and he or she must acknowledge the caution in writing.
| OFFICIAL RECORD OF FORMAL CAUTION |
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| An official record of police cautions is kept. In this way, the youth’s admission of the offence and receipt of a formal police caution can be subsequently alleged as prior offending should the youth re-offend and come before the Youth Court at a later date. Cautions are not alleged as prior offending past the age of eighteen, although records are maintained. [see Young Offenders Act 1993 (SA) s 58]. |
Section 8 of the Young Offenders Act 1993 (SA) provides that where a youth fails to comply with a requirement of a police officer, or an undertaking, the police officer may:
| CONFLICTING INSTRUCTIONS |
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A situation may arise where a youth maintains the assertion of innocence to the duty solicitor in confidence but instructs that they wish to admit the charge and accept a formal caution to ‘get it over and done with’. While this is a decision the youth is entitled to make, they duty solicitor cannot ethically continue to act on the basis of those instructions. The proper course is for the duty solicitor to advise the youth that acceptance of a caution constitutes admission of the offence and provide the youth with information about the range of penalties which can be imposed following a caution. The duty solicitor should also advise the youth that they have a right to take the matter to trial and decline to act further on the youth's behalf. This means that where the youth’s confidential instructions do not represent an unambiguous admission of liability the duty solicitor should not be physically present when the caution is delivered, nor continue to negotiate agreed facts with prosecution which conflict with the youth’s confidential instructions. In practice, solicitors would not normally attend during the cautioning process anyway. |
| SIGNED INSTRUCTIONS |
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In cases where the duty solicitor has been involved in negotiating disputed issues with prosecution with the result that the youth now instructs that they admit the offence on a basis of agreed facts, and wishes to accept the caution, the duty solicitor must obtain signed instructions to that effect. |
The object of the family conference is to establish a forum for offender/victim mediation aimed at making non-recidivist young offenders aware of the consequences of and accepting responsibility for their behaviour. It is a non-adversarial model which involves discussion, often over a period of several hours, of the causes and damaging consequences of the particular offence in the hope of dissuading the youth from further offending.
A family conference may be convened by a Youth Justice Coordinator on notification by a police officer pursuant to section 7 of the Young Offenders Act 1993 (SA) where the youth:
[see Young Offenders Act 1993 s 7(1)(b) for referral to family conference; s 8(7)(a) for referral upon failure to comply with a police caution requirement or undertaking]
A family conference may not be convened where the youth disputes the offence and/or particular allegations. Where a matter is contested the youth must be charged and the matter must come before the Court for determination [see Young Offenders Act 1993 s 7(4)].
| ADVICE RELATING TO A FAMILY CONFERENCE |
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| As with a formal police caution, a youth must have the opportunity to seek legal advice prior to such a referral. The duty solicitor may on occasion be required to advise a youth and/or their parent or guardian of the nature and consequences of family conference proceedings, the youth’s rights and obligations if they agree to attend a family conference, and the advantages or otherwise of exercising the right to have the matter dealt with by the Court rather than by family conference. |
Sections 9 - 12 of the Young Offenders Act 1993 (SA) provide for referral to a family conference. Section 10 outlines the arrangements to be made by a Youth Justice Coordinator upon notification by a police officer for a matter to be convened for a family conference [see s 10 for the persons to be notified]. The date, time and place of the family conference are arranged by the Youth Justice Coordinator in consultation with all intended participants who should then be notified in writing. The family conference consists of:
A family conference should act if possible by consensus of the youth and such of the persons invited to attend the conference as attend [see s 11(2)]. If a family conference fails to reach a decision, the matter must be referred to the Court, and the Court may decide any question, and exercise any power, that could have been decided or exercised by the family conference [see s 11(5)].
A decision by a family conference is not validly made unless the youth and the representative of the Commissioner of Police concur in the decision [see s 11(3)]. The police officer present at the family conference in effect has power to veto any agreement or decision reached by the family conference. Where such veto is exercised, the youth must be formally charged and the matter brought before the Court. The youth may refuse to sign an undertaking as to penalty, in which case the youth is formally charged and the matter brought before the Court.
The Youth Justice Coordinator must consult with the victim or the person who has suffered loss or damage as to whether he or she wishes to be informed of the identity of the offender and how the offence has been dealt with [see ss 12(11)-(12)].
| LEGAL REPRESENTATION AT A FAMILY CONFERENCE |
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A youth is entitled to have a legal representative present at a family conference and be advised by them. However, the legal representative may not make submissions or representations on behalf of the youth. The solicitor’s role is confined to that of advice only [see Young Offenders Act 1993 (SA) s 11(4)]. Time constraints prevent duty solicitors attending family conferences except on rare occasions. However, a request by a youth to attend may occur where the duty solicitor has had an ongoing solicitor/client relationship with the youth, such as where a matter has been referred back to family conference from the Youth Court under section 17(2) of the Young Offenders Act 1993 (SA). |
Section 12 of the Young Offenders Act 1993 (SA) sets out the powers and sanctions available to a family conference. The family conference has power to administer a formal caution against further offending and/or to require the youth to enter into an undertaking for a period not exceeding twelve months [see ss 12(1)(a) and 12(4)]. In exercising its powers, the family conference must have regard to sentences imposed for comparable offences by the Court [see s 12(2)].
Where a formal caution is administered, the caution must be in writing and acknowledged by the youth [see s 12(3)].
An undertaking may require the youth to:
Any apology to a victim or to the person who has suffered loss or damage must be made in the presence of an adult person approved by the family conference or Youth Justice Coordinator [see s 12(7)].
Where a youth is cautioned and no further requirements are made of the youth or all the requirements made of the youth (including obligations arising from an undertaking) are complied with, the youth is not liable for prosecution for the offence [see s 12(10)].
Where a youth fails to attend a family conference, or does not comply with a requirement or undertaking from a family conference, a police officer may lay a charge before the Court for the offence in relation to which the conference was convened [see Young Offenders Act 1993 (SA) s 12(8)]. Charges may be laid within 12 months of the expiration of the relevant statutory period of limitation [see s 12(9)].
| ADVICE RELATING TO A FAMILY CONFERENCE |
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| Where the duty solicitor is called upon to advise a youth in relation to a matter in which family conference proceedings have failed for whatever reason, the duty solicitor should seek detailed instructions from the youth as to the reasons for non-attendance or for the breakdown of any agreement reached. Where the problem is able to be remedied it may be possible to facilitate a referral back to a family conference pursuant to section 17(2) of the Young Offenders Act 1993 (SA).
Where the youth has attended at the family conference, but has in the course of discussions denied the offence itself or particular allegations, and the matter is brought back before the Court, it should be further adjourned for negotiations to take place between the youth's solicitor and prosecution. If the disputed issues cannot be resolved the matter will ultimately need to be set for trial or for a disputed facts hearing. |
Other state laws relating to criminal investigation, arrest, bail, remand and custody apply to youth criminal proceedings, except where modified by the Young Offenders Act 1993 and related regulations [see s 14(1)]. Where a youth is arrested on suspicion of having committed an offence, and the youth is dealt with in accordance with the Young Offenders Act 1993, the police officer responsible for the arrest and custody of the youth must as soon as practicable after the arrest:
The provisions in the Summary Offences Act 1953 governing police powers to search, seize, investigate offences, arrest and interrogate suspects apply to youth. In particular, section 79A(1a) requires an investigating police officer to ensure that a youth is not subjected to an interrogation or investigation until they have secured the presence of an independent adult to attend at the interview to represent the youth’s interests [see Summary Offences Act 1953 s 79A(1a); s 79A(1b) for exception].
Aboriginal Legal Rights Movement Ltd (‘ALRM’) must be notified if any Aboriginal or Torres Strait Islander person is arrested in South Australia. This includes a person under 18 years of age, in the youth jurisdiction [Summary Offences Regulations 2016 (SA) reg 33C].
The Bail Act 1985 applies to bail applications made in the Youth Court, with the availability of stable accommodation and residential placement assuming particular importance. Specific references to youth in the Bail Act 1985 include:
Detailed information in relation to bail and applying for bail is available in the Bail chapter.
| BAIL APPLICATIONS |
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| Youths in custody will have been arrested and refused police bail following overnight or weekend arrest on a new matter or on a first instance warrant, or both. The present practice in the Youth Court is for the duty solicitor to be provided each morning with a daily custody list giving details of morning and afternoon custodies. Generally first instance warrants are dealt with in the morning and new offences in the afternoon. Before seeking instructions from a youth client, the duty solicitor should first check the nature of the charges, the allegations, and any grounds of opposition to bail with the prosecutor. If possible, confirm with Department for Child Protection personnel at or before court whether suitable accommodation is available for the youth, whether in his or her own family home, in foster placement or within any of the Department for Child Protection residential assessment units. At the same time it may be useful to check with Department for Child Protection personnel whether there is any current problem with the youth’s complying with court orders for supervision by Department for Child Protection staff or complying with any other obligation whilst on bail. |
When taking instructions from a youth for the purpose of a bail application it is important to seek instructions regarding:
The objectives and statutory policies of the Young Offenders Act 1993 apply equally to bail as to sentencing [see s 3(3)]. Where appropriate, submissions should be directed to section 3(3), to the effect that a refusal of bail and remand in custody would:
The role of the officer from the Department of Child Protection is similar but by no means identical to the role of a Correctional Services officer in the adult court. Department for Child Protection personnel will be familiar with the Department’s past contact with the youth and dealings with the youth’s family and will be required by the Court to furnish information relevant to the Court’s determination of bail. These officers can be of great assistance by providing succinct background information.
| CHECK ACCURACY OF INFORMATION |
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| The duty solicitor should always check the accuracy of any information provided by the Department for Child Protection officer with the client and remember they act on the client’s instructions rather than those of Department for Child Protection. |
Where a youth cannot or will not reside with a parent, guardian or other suitable person during the period of a remand on bail, the Court as a matter of practice requires assurance that the youth will be placed in suitable accommodation pending finalisation of the charges. Where such placement is available the Court will generally, if bail is granted, require that it be a condition of a bail agreement that the youth be under the supervision of an officer from Youth Justice and obey his or her directions as to residence.
Youths under the guardianship of the Minister or Director General are owed a duty of care by the Minister who is guardian and is required to provide accommodation and supervision.
| BAIL ASSESSMENT REPORT |
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| Where there are no other matters which should displace the presumption in favour of bail, but the officer from the Department for Child Protection states that no departmentally-arranged accommodation is available for a youth who otherwise has no fixed place of abode, they duty solicitor should submit that it is inappropriate that the youth be detained in custody with more serious offenders for the sole reason that the department is unable to provide suitable accommodation. In practice, where accommodation is unavailable, the Magistrate or Judge will be aware of the need to minimise time spent in custody unnecessarily, and will normally order an urgent bail assessment report be prepared by the Department for Child Protection to address the issue of accommodation. There is a turnaround time of about two days for this report, although it can be quicker. |
Conditions of bail agreements in the Youth Court may include provisions such as that youth:
A copy of the bail conditions can be furnished to relevant local police officers for monitoring of compliance with the bail agreement.
| ALLEGATIONS OF BREACHING BAIL CONDITIONS |
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| Where it is alleged that the youth has breached a condition of bail, for example, by non-compliance with a curfew or failing to comply with the supervision of a Youth Justice officer, the duty solicitor should seek the youth’s instructions as to their understanding of what the direction required them to do. Where the direction may be characterised as ambiguous or unreasonable, such as to complete homework, it may be arguable that the direction itself is not lawful.
Home detention bail applies in Youth Court applications for release on bail. Where the youth instructs that they would comply with home detention bail conditions and where there is a suitable residence the duty solicitor should ask the Court to order a home detention bail assessment report. |
For more information, see the Youth Court Bail Hearing video prepared by the Courts Administration Authority.
Charges that bring a youth to the Court may only be laid where the youth requires the matter to be dealt with by the Court or where the police officer is of the opinion that the matter should be dealt with by the Court because of the youth’s repeated offending or some other circumstances of aggravation [see Young Offenders Act 1993 (SA) ss 7(4)(a), 8(7)(b) and 7(4)(b)]. In addition, where a youth fails to attend a family conference, or fails to comply with a requirement or undertaking from a family conference a police officer may lay a charge before the Court for the offence in relation to which the family conference was convened [see s 12(8); s 12(9) for exception to statute of limitations].
In the case of a major indictable offence, the DPP may instead of laying a charge against a youth before the Youth Court, lay the charge before the Magistrates Court where the DPP is of the opinion that the youth poses an appreciable risk to the safety of the community and should be dealt with as an adult [see Young Offenders Act 1993 ss 16(2) and 17A; Criminal Procedure Act 1921].
Section 16(2) came into effect on 3 February 2008, and applies to offences committed on or after that date [see Statutes Amendment (Young Offenders) Act 2007] although it is rarely invoked.
In deciding whether a youth poses an appreciable risk to the safety of the community, the DPP or the Magistrates Court (as the case requires), must take into consideration the following matters:
The Youth Court has jurisdiction to hear and determine offences committed by youth [see Young Offenders Act 1993 (SA) s 16(1)]. It deals with charges in the same way as the Magistrates Court deals with a charge of a summary offence, and in doing so, has the powers of the Magistrates Court [see s 17(1)]. In essence, the Youth Court deals with summary and indictable charges laid before it in the same way as the Magistrates Court deals with summary offences but with the following exceptions:
The Court may refer a matter back to be dealt with by formal police caution or by family conference where the charge is found proved (either by the youth’s admission of guilt or by a finding of the Court at trial) [see Young Offenders Act 1993 (SA) s 17(2)].
Homicide, or an offence consisting of an attempt to commit, or assault with intent to commit homicide, must be dealt with in the Supreme Court following preliminary examination and committal procedures in the Youth Court [see Young Offenders Act 1993 (SA) s 17(3)(a); s 19 for preliminary examination; s 29(3) for sentencing as an adult].
| ASSISTANCE RELATED TO HOMICIDE MATTERS |
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| The duty solicitor should not take instructions on homicide matters and should immediately assist the youth to obtain senior legal advice and representation. These matters attract media attention and it is prudent to advise the youth in custody to defer any application for bail until senior representation is available. |
A youth charged with an indictable offence may ask to be dealt with in the same way as an adult in the District Court [see Young Offenders Act 1993 (SA) s 17(3)(b); s 19 for preliminary examination; s 29(3) for sentencing as an adult; s 36 for detention].
The DPP or a police prosecutor may apply to the Youth Court or the Supreme Court for a determination that the youth should be dealt with as an adult due to the gravity of the offence or because the offence is part of a pattern of repeat offending [see Young Offenders Act 1993 (SA) s 17(3)(c); s 19 for preliminary examination; s 29 for sentencing youth as an adult; s 36 for detention].
The Youth Court has the same powers to sentence a youth for a summary offence as the Magistrates Court, and the same powers in respect an indictable offence as the District Court [see Young Offenders Act 1993 (SA) s 22]. Generally, young offenders are treated more leniently than adults. The Sentencing Act 2017 (SA) is generally applicable, except to the extent that the provisions of that Act conflict with specific provisions of the Young Offenders Act 1993. Section 3 of the Young Offenders Act 1993 (SA)places a different emphasis on the aims of sentencing as compared to sentencing an adult [see R v QTV (2003) 87 SASR 378; [2003] SASC 424]. In sentencing, effect should be given to the following statutory policies:
Before sentencing, the Court may request from the Department for Child Protection a social background report on the personal circumstances of the youth [see Young Offenders Act 1993 (SA) s 32].
| CONSIDERATIONS FOR BAIL AND SENTENCING SUBMISSIONS |
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The duty solicitor’s submissions in applications for release on bail and in mitigation of penalty should address the statutory policies expressed in section 3(3) of the Young Offenders Act 1993. Detailed instructions should be obtained regarding the youth’s personal antecedents including:
Frequently, the youth is known to the Department for Child Protection and you should consult with them and then take instructions about any information provided. Someone from the Department for Child Protection may be in the Court and may be invited to make submissions in relation to an application for bail. When making submissions, remember that the Young Offenders Act 1993 (SA) places emphasis on the individual youth, and directs the Court to have regard to ensuring the proper realisation of the youth’s potential in accordance with section 3(1). |
Under the Young Offenders Act 1993 there is no power to take into account the secondary sentencing purpose of ensuring general deterrence as outlined in the Sentencing Act 2017 (SA) section 4(1)(d) when sentencing a young offender, except where the youth is being dealt with as an adult in the Supreme or District Court.
The Court is required to have regard only to the deterrent effect of punishment on a young offender personally [see Schulze v S (1995) 180 LSJS 371;[1995] SASC 5005].
When imposing sanctions on a youth for illegal conduct the sentencing court must have regard to the deterrent effect a proposed sanction may have on the youth [see Young Offenders Act s 3(2a)(a)].
Where a youth is being dealt with as an adult regard should be had to the deterrent effect any proposed sanction may have on other youths and the balance between the protection of the community and the need to rehabilitate the youth [see s 3(2a)(b)].
Under the Youth Court Act 1993 the Court can make an order for imprisonment or detention and may issue a warrant for a person’s apprehension and imprisonment or detention [see s 29]. However, section 23(1) of the Young Offenders Act 1993 provides (subject to section 23(6)) that the Court cannot sentence a youth to imprisonment. A custodial sentence is viewed as a sentence of last resort as reflected in section 23(4) which provides that a sentence of detention must not be imposed for an offence unless the offender is a recidivist offender, or where the Court is satisfied that a sentence of a non-custodial nature would be inadequate because of the gravity of the circumstances of the offence or because the offence is part of a pattern of repeat offending.
If an offence for which a youth is convicted or found guilty is punishable by imprisonment where committed by an adult, the Court may sentence the youth to:
Where the maximum term of imprisonment for the offence is less than three years, the period of detention cannot exceed the maximum [see s 23(3)].
Recidivist young offenders
Where a young offender has been convicted of at least three serious offences (committed on separate occasions) or at least two serious sexual offences (committed on separate occasions), they can be declared as a recidivist young offender [see Sentencing Act 2017 (SA) s 55 ]. Where such a declaration is made then heavier sentences can be imposed. There are also implications for conditional release.
Kurlana Tapa Youth Training Centre (formally Adelaide Youth Training Centre)
Kurlana Tapa (new path) Youth Training Centre has two campuses, and the age of the youth and their gender will determine on which campus they are placed. The Centre provides safe and secure detention for children between the ages of 10-18 years who have been arrested and refused bail or remanded or sentenced to detention.
Goldsborough Road Campus
26-46 Goldsborough Road
Cavan SA 5095
Phone: 8169 1444
Jonal Drive Campus
1 Jonal Drive
Cavan SA 5095
Phone: 8169 1444
A sentence of home detention as distinct from detention within an institution may be ordered pursuant tosection 37A of the Young Offenders Act 1993. A sentence of home detention imposed on a youth is subject to the following conditions:
A youth is not in breach of home detention conditions if they leave the residence for the purpose of averting or minimising a serious threat of risk or injury [see s 37C(3)].
A sentence of home detention must not be imposed unless the Court is satisfied of the availability of suitable residence, that the youth will be properly maintained and cared for, and adequate resources exist for the proper monitoring of home detention conditions [see s 23(5)]. There is no power to backdate a sentence of detention [see Edwards v South Australian Police (1995) 180 LSJS 215; [1995] SASC 4987(Unreported, Prior J, 27 February 1995)].
The Court may vary an order for home detention if satisfied the residence is no longer suitable for home detention and there is some other suitable residence available [see s 37C(1)]. An order can be revoked where the Court is satisfied that the youth has breached a condition of home detention or the residence is no longer suitable and there is no other residence available [see s 37C(2)]. Where the Court revokes an order for home detention, it may impose some other sentence on the youth, but must take into account the period served by the youth under the order [see s 37C(4)]. Where an order is revoked on the ground of breach of condition, the Court may sentence the youth to detention for a term not exceeding the balance of the period of unexpired home detention as at the date on which the breach occurred, but a sentence of detention may not be imposed in the case of revocation on any other ground [see s 37C(5)]. The Court may issue a warrant for the apprehension of the youth pending determination of the breach [see s 37C(6)].
Upon breaching the condition requiring the youth to remain at his or her residence, that youth is unlawfully at large [see s 37D(1)].
Section 96 of the Sentencing Act 2017 (SA) applies when considering the suspension of a custodial sentence [see Bechara v SA Police [1995] SASC 5013 (Unreported, Lander J, 9 and 31 March 1995) for application of section 38 of the previous Criminal Law (Sentencing) Act 1988 (SA)].
Further information in relation to suspended sentences is available in the Sentencing chapter.
The Court does not have the power to require a youth to enter into a bond [see Young Offenders Act 1993 (SA) s 26(1)]. However, the Court may order a youth to be placed under an obligation of the kind that would otherwise have been imposed under a bond [see Sentencing Act 2017 (SA) s 97(1)] and this may include (for example) an obligation to:
Failure to comply with an obligation is an offence. The maximum penalty is a fine of $2,500 or detention for six months, or both [see s 26(4)].
Although rarely invoked, the Court may release a youth on an undertaking, on condition that the guardians of the youth enter into a supplementary undertaking [see Young Offenders Act 1993 s 27] to:
A court may not require a youth to carry out community service if the aggregate requirement exceeds 500 hours [see Young Offenders Act 1993 s 25(1)]. The period over which community service is to be performed may not exceed eighteen months [see s 25(2); s 49 for placement requirement; s 49A for restrictions; s 51 for work orders limited to certain kinds of work].
Section 28 of the Young Offenders Act 1993 gives the Youth Court the power to order that a youth who is found guilty of an offence may not hold or obtain a driver’s licence if it is of the opinion that the child is not a fit and proper person to have a driver’s licence, or to impose a licence disqualification where such a penalty is appropriate for the offence [see s 28(1)]. Where this order is imposed, a youth is not entitled to apply to the Magistrates Court for an order removing a disqualification under section 172 of the Road Traffic Act 1961 until they attain the age of eighteen years [see Young Offenders Act 1993 s 28(3)].
The Court may not impose a fine exceeding $2,500 for an offence [see Young Offenders Act 1993 s 24]. The Court may remit or reduce a fee on account of the poverty of the party by whom the fee is payable or for any other proper reason [see Youth Court Act 1993 s 33].
A youth’s appearance in the Youth Court will be recorded and kept, so that if they later appear in the adult jurisdiction, a record of prior offences for which they appeared in the Youth Court will be before the Court.
A youth sentenced to a period of detention in a training centre may be granted conditional release by the Training Centre Review Board at any time after the youth has completed at least two-thirds of the period of detention, where it is satisfied that the youth’s behaviour during the period of detention has been satisfactory and that there is no undue risk that the youth would re-offend if conditionally released [see Young Offenders Act 1993 ss 41A(1), 41A(2)(a) and 41A(2)(b)(i)]. Consideration must be given to the impact the release of the youth will have on a registered victim and the victim’s family [see s 41A(2)(b)(ii)].
Conditional release does not apply where the sentence of detention is less than two months [see s 41(1)(c)]. Nor does it apply where the youth has been sentenced as an adult [see s 41(1)(a)].
In addition, on application by the Chief Executive or on the initiative of the Training Centre Review Board a youth may be released onto home detention conditions for the remainder of the unexpired balance of the term of detention or such shorter period as determined by the Training Centre Review Board [see s 41B].
Specific provisions apply relating to the release of young offenders who are also considered terror suspects (as defined in section 4(1) of the Young Offenders Act 1993 (SA)) - see section 43 of the Young Offenders Act 1993 (SA).
Under section 63 of the Young Offenders Act 1993 a youth sentenced to a period of detention in or remanded to a youth detention centre may be transferred to a prison for the remainder of the period of detention where:
Section 63(4) provides for transfer of a youth of, or above, the age of 17 to a prison on the application of the Chief Executive where the youth:
| APPLICATION FOR TRANSFER TO PRISON |
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| The duty solicitor does not normally appear to oppose an application under section 63(4) of the Young Offenders Act 1993. However, if the duty solicitor does become aware of a youth in custody who wishes to oppose such an application they should arrange to brief senior counsel as a matter of urgency. |
The Treatment Intervention Court operates within the Youth Court and supervises eligible defendants whose offending is relating to mental impairment and/or substance dependence.
The Youth Court Treatment Intervention Program commenced in 2011 and replaced the former Youth Court Assessment and Referral Drug Scheme (Youth CARDS) and the former Youth Court Diversion Program (YCDP).
Eligible defendants appearing in the Youth Court are able to access the 6 month Treatment Intervention stream. Young people who may not be eligible for a referral for a Family Conference due to the nature of their offending are targeted for referral to this stream. Treatment services are usually provided by private psychologists.
For more information on the practices and procedures of the Treatment Intervention Court, see the Duty Solicitor Handbook section on Treatment Intervention Court.
A basic dictionary of common criminal law words for young people can be found at the LSC Publications page What Do These Legal Words Mean Fact Sheet.
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Legal Services acknowledges Aboriginal people as the Traditional Owners and ongoing occupants of the lands and waters in South Australia and we respect their spiritual, cultural and heritage beliefs. We recognise their continuing connection to land, water and community and pay our deep respect to Elders past and present.
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