HSSW304 Assessment 2 - Grade: 62 PDF

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Assessment 2 – Case Study

HSSW304 – Juvenile Justice and Child Protection Unit Coordinator – Louise Morley Due Date – 28th August 2019 Word Count - 2120

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When children are accused of crimes, they become very vulnerable in the justice system. In particular young people are vulnerable during police interviews when their rights are not correctly enforced. As Millie is a 15-year-old Aboriginal young person it is crucial that she is sufficiently represented and cared for during her police interview. Support workers can be very beneficial to vulnerable young people in the justice system. This paper will discuss how Millie can benefit from the presence of a support worker during her interrogation and what the role of a ‘responsible person’ is. Supporting documents will be used to identify the laws surrounding children’s rights in the criminal justice system and how they can be protected.

If a young person is accused of a crime many issues can arise as a result of the criminal justice process. The first issue to be addressed is the psychosocial and cultural issues impacting this situation. Firstly, there is a substantial over representation of Aboriginals in the criminal justice system, this can be attributed to multiple factors. Indigenous people make up 14% of Australia’s prison population because the justice system is typically more harsh on this minority as opposed to non-indigenous people (Walker & McDonald, 1995). It is important that young Aboriginals are represented by a responsible adult in order to abolish unfair targeting and treatment by police, especially self-incrimination due to coercion. The next issue is Millie’s stressful family life, she has recently moved out of her family home due to stress and therefore has had no adult supervision. Due to the lack of supervision, Millie may be more inclined to submit to peer pressure from her friends and potentially act out and get involved with illegal behaviour. Another factor leading to this could be that she is currently undergoing development and typically teenagers in development are likely to rebel against their parents and laws (Pickhardt, 2009). Some community related issues are that this group of young people may have been accused of this crime due to the labelling theory. This theory states that deviancy and crime is a result of social judgement, therefore police intervention may actually cause deviant behaviour (Cunneen & White, 2011). This theory can also relate to Aboriginal over representation as police are known for targeting indigenous young people based on minor suspicions (Blanco, 2018). The final issue is community safety, legislation states that when a crime is committed, it is essential to ensure community safety (Crimes (Sentencing Procedure) Act, 1999). This introduces the next factor to be considered, which is the legal issues surrounding Millie’s situation.

The next factor to be considered in this situation are the legal issues surrounding the police interview process. The most important factor in this situation is that Millie is 15 years old. As 2

a young person of this age, there are special considerations to be made to ensure her rights are upheld. The main issue when children above the age of 14 are interviewed by police is that section 13 of the Children (Criminal Proceedings) Act requires them to be accompanied by a responsible adult of their choosing (Children (Criminal Proceedings) Act, 1987). The next issue is that Millie has been assumed to have committed the crime, this is clear when the police officer attempts to forcefully coerce her to admit she is guilty. This abolishes the requirement of the assumption of innocence in criminal proceedings which is required by Article 40 (2)(b)(i) of the United Nations Convention on the Rights of the Child (UNCROC) (Convention on the Rights of the Child, 1989). The next issue is that Millie has been arrested and taken into custody merely on the basis of ‘suspicious behaviour’. There is no evidence to support Millie’s arrest, therefore she can only be held for 6 hours without being released or charged with an offence (Nedim, 2014). Lastly to be discussed is the ethical issues of Millie’s arrest and interview.

The ethical issues surrounding the interview of Millie are important to be considered as they may influence whether she is treated fairly and just in the criminal process. Firstly, all decisions made are required to be of the best interests of the child, this is essential in criminal proceedings as stated by article 3 of the UNCROC (Convention on the Rights of the Child, 1989). It is also of concern for the police to obtain justice for the shop owner and the community affected. This raises the issue of whether punishing Millie for her actions is too harsh or if protecting the community is more important. In this instance it is important that Millie is treated fairly as well as provision of safety for the community (Crimes (Sentencing Procedure) Act, 1999). This ethical issue ties into Millie’s rights in the criminal process as it is important that the correctional officers act ethically in upholding her rights. In doing this it is important that the police officers do not abuse their power in the interview. It is clear that in this situation the police have misused their power in that they have not assumed Millie’s innocence and have coerced her to admit to something she may not have done in order to bring justice for the shop owner. This raises the ethical issue of a major power imbalance between the police officer and Millie. This is why it is essential to have a support worker present to explain and protect her rights in the interview. The ethical issues regarding the support worker is that it is essential for this person to adequately protect the child in questioning. If the support worker is not considerate of the child’s best interest, this child may become very vulnerable and run into serious legal trouble as they may not understand what

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they are being asked. The specific issues relating to Millie’s protection are reflected in the law, these will be discussed further.

Young people’s rights are a crucial feature of every criminal process involving a minor. These are important as it ensures that the vulnerability of children is counteracted with the support of enforceable legal documents. The UNCROC is an example of a document that reflects children’s legal rights. Article 37 (2) is the first example in this document, this section ensures that children are free from torture and that their liberty shall be protected and maintained, and if this is not ensured then the child shall have access to legal assistance (Convention on the Rights of the Child, 1989). Another example within this document is article 40, this section sets out the requirements of the state in regard to children’s rights. These requirements are; the law cannot be retrospective, the child must be presumed innocent and must be informed of the charges against them and have legal assistance available along with the right to a fair hearing (Convention on the Rights of the Child, 1989). The child must not to be forced to confess guilt, they have the right to appeal the decision and consequences and they have the right to have access to an interpreter as well as provision of full privacy during the proceedings (Convention on the Rights of the Child, 1989). When a young person is arrested, they have the right to silence to avoid self-incrimination (Legal Aid NSW, 2015). Children also have the right to free and available legal representation throughout their process in the justice system (Legal Aid NSW, 2015). A formal piece of legislation that sets out children’s legal rights is the Children (Criminal Proceedings) Act 1987.

The 1987 Act’s principles listed in section 6, set out children’s legal rights and requires state parties to ensure these are preserved. This section enforces that; children have equal rights to adults and the penalty imposed must not be greater than that of an adult committing the same offence (Children (Criminal Proceedings) Act, 1987). Children must bear responsibility for criminal actions but require assistance to do so due to their dependency and it is desirable where possible, to maintain education, employment and residence in their own home (Children (Criminal Proceedings) Act, 1987). Reintegration must be encouraged for the maintenance of family and community, children must accept responsibility and make reparations, and consideration should be given to the effect on any victims (Children (Criminal Proceedings) Act, 1987). Section 12 enforces the requirement that all criminal proceedings must be explained to and understood by the affected child (Children (Criminal Proceedings) Act, 1987). Section 13 of this act states that evidence will not be admissible 4

unless the child in questioning has a responsible adult present separate of the interviewing police (Children (Criminal Proceedings) Act, 1987). This legislation aims to enforce the protection of vulnerable children in the legal system, although whether these rights are enforced is due to the state’s discretion.

To evaluate whether the law has been effective in protecting children’s legal rights, it is essential to assess Millie’s particular situation. The first issue to evaluate is whether Millie has a responsible person present in her interview of her choosing according to s13 of the 1987 Act (Children (Criminal Proceedings) Act, 1987). It is clear that Millie has been provided the opportunity to call a responsible person in this case, and she has opted to choose her support worker for the role. Millie’s support worker sufficiently fits the role of a responsible person as required by s13(a) of the legislation (Children (Criminal Proceedings) Act, 1987). In regard to the requirement of a responsible person, the law has been effective in providing this for Millie’s protection, although the police have failed to follow the law in other areas. The next aspect of the interview is whether Millie was provided with the right to the assumption of innocence until proven guilty set out in article 40(2)(a) of the UNCROC (Convention on the Rights of the Child, 1989). This requirement was not met, and this is clear when the police officer shouts “Just admit you did it Millie and you’ll get off lightly”. This statement clearly assumes Millie’s guilt and attempts to coerce her into admitting her guilt, which denies her of 2 fundamental rights. The other right being refused is that children are not to be forced to give a statement or confess guilt which is also explained in article 40(2)(a) of the UNCROC (Convention on the Rights of the Child, 1989). These rights are the only applicable examples in Millie’s situation, it is clear that in the case of legal rights, children are protected to some extent although police discretion is the deciding factor of which rights are upheld and which are ignored for the benefit of the interview. It is the role of the responsible person to ensure that police follow the law in regard to children’s rights, in this case this is Millie’s support worker.

The role of a responsible person is concerned mainly with protecting young people’s legal rights to ensure police interviews are fair and just for vulnerable children. Broadly, the role of a responsible person is to observe the police interview and ensure no improper conduct is occurring, this person may be required to interfere when police are not acting in an appropriate manner (Boersig, 2002). S13 of the Children (Criminal Proceedings) Act has been interpreted by a justice as a means of protecting an accused child from self5

incrimination (Boersig, 2002). Section 13 is also recognised as ensuring protection of children from the police and other parties which may potentially harm them (Boersig, 2002). Although this section does not explicitly say what the role of a responsible person is, simply interpreting the intentions of the legislation can clarify this. It is clear that the responsible person’s main role is to always consider the best interests of the child in order to adequately protect them from themselves, and others and uphold their legal rights.

It is crucial that when a child is accused of a crime and a police interview is required, that this child is not left alone with police officials. Children can be very vulnerable in the criminal justice system and therefore are more likely to self-incriminate themselves or become vulnerable to police harm. To ensure that children are adequately protected within the criminal process, it is essential for a responsible adult of the child’s choice to be present. In the case of Millie, her support worker was nominated, and the role of this person was to ensure Millie was treated fairly in the interview. Millie’s psychosocial factors along with the legal and ethical issues all contributed to her vulnerableness in this situation and the role of the support worker was crucial in this instance. Millie’s responsible person was also accountable for upholding her rights and controlling the damaging situation that arose in the police interview.

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References Blanco, C. (2018). ‘Racist policing’: NSW Police slammed as data reveals more than half of youth targeted by secret blacklist are Indigenous [Blog]. Retrieved from https://www.sbs.com.au/nitv/nitv-news/article/2018/04/18/racist-policing-nsw-policeslammed-data-reveals-more-half-youth-targeted-secret Boersig, J. (2002). The Duty of 'A Responsible Person' Under Section 13 of the Children (Criminal Proceedings) Act 1987 (NSW). QUT Law Review, 2(2). doi: 10.5204/qutlr.v2i2.102 Children (Criminal Proceedings) Act (1987). Crimes (Sentencing Procedure) Act (1999). Cunneen, C., & White, R. (2011). Juvenile Justice Youth and Crime in Australia (4th ed., p. 38). Melbourne: Oxford University Press. Legal Aid NSW. (2015). i know my rights - i think [Video]. Retrieved from https://www.youtube.com/watch?v=bQBELO30Fv0 Nedim, U. (2014). How Long can I be Kept in Police Custody? Retrieved from https://nswcourts.com.au/articles/how-long-can-i-be-kept-in-police-custody/ Pickhardt, C. (2009). Rebel with a Cause: Rebellion in Adolescence [Blog]. Retrieved from https://www.psychologytoday.com/au/blog/surviving-your-childsadolescence/200912/rebel-cause-rebellion-in-adolescence United Nations. Convention on the Rights of the Child (1989). Walker, J., & McDonald, D. (1995). The Over-Representation of Indigenous People in Custody in Australia [Ebook] (47th ed.). Canberra: Australian Institute of Criminology. Retrieved from https://aic.gov.au/publications/tandi/tandi47

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