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DEATH IN CUSTODY NEWSLETTER
February 1994
" WA amendments will increase juvenile custodial numbers "
The Western Australian Government pushed through Parliament shortly
before Christmas the Criminal Procedure Amendment Act 1993 to amend the
law relating to juveniles concerned with bail, the obligations of
parents and the infamous Crime (Serious and Repeat Offenders)
Sentencing Act 1992, passed by the Lawrence Government.
The Bail Act amendments are very worrying. They significantly reduce the
rights of juveniles to bail and do so in a State where custodial remands
are extremely high by the standards of other places. In Western Australia
there are already virtually no effective restrictions
or controls on the arrest of juveniles, rather than the use of
summons or notice to attend and following arrest, fingerprinting and
photographing are standard practice. Often bail is refused, sometimes
for reasons well outside the justifications provided in the existing
legislation.
The amendments make the matter much worse and follow an election
campaign in which the Government said that if elected to power it would
end the so called "revolving door" syndrome of juveniles being released
to bail and committing further offences. During the election campaign
this alleged syndrome was planted by Liberal Party advertisements
firmly at the feet of the Children's Court notwithstanding the fact that
most children are admitted to bail by police or other authorised officers.
However, significant numbers of children are denied bail, and even the
qualified right of juveniles to bail now contained in the Bail Act is to
be drastically limited. Child defendants can no longer be granted bail
on their own undertaking.
A condition of bail will be that the child cannot be
released unless a responsible adult person gives a written undertaking
to the Court that the child will comply with the requirements of
bail. The only exception is in the case of juveniles of 17 years who
satisfy the bail authority they have sufficient maturity to live
independently of parents or guardian. Where no responsible adult is
found to give such an undertaking as the legislation
requires, the Court..must.. refuse...bail.. and the
child ....must.... be taken to and placed...in a detention centre.
Various youth and..Aboriginal groups and lawyers have expressed..grave
concern that this will mean a drastic..increase.. in the already high
juvenile custodial numbers. Where parent/child conflict is ongoing, and
this is common amongst groups most concerned, it can be readily foreseen
that parents will refuse to grant the undertaking. Whether police or
other authorities will search for other family members or
responsible adults remains to be seen, but if they do it will draw them
into intra familial conflicts. If the child is granted bail, but the
undertaking is withdrawn before the next court appearance by the
responsible adult, then an authorised police officer has power to
revoke bail and take the child into custody until an alternative person
is approved by an authorised police officer or the Court as a
responsible person who can enter into an undertaking. This
again provides scope for abuse. The amendments specify certain
conditions which can be imposed upon children granted bail
although often such conditions are imposed by the Children's Court upon
juveniles. The conditions include for example curfews, non-association
with certain others, attendance at school and so on.
Even worse is the position concerning juveniles granted
bail for an "serious offence". If such a child is
charged with committing a further serious offence then
the Court...must... refuse bail unless there
are exceptional reasons why the defendant should not be held in custody
and the juvenile can satisfy the various other qualifications to
bail. The legislation does not spell out the meaning
execptional reasons. The concept of a"serious offence" is defined by
reference to a schedule which includes not only the most obvious cases
such as wilful murder, but also matters such as assault occasioning
bodily harm, indecent assault and certain burglaries. it is important to
understand that the child automatically being refused bail in
these situations may well plead not guilty to one or other of the
offences and in fact be acquitted.
The Youth Affairs Council of Western Australia has taken the view that
the amendments effectively discriminate against young people lacking
accommodation and family supports. The Youth Affairs Council has pointed
out that a young person charged with loitering who seeks a remand for
legal advice may be remanded in custody because there is no responsible
person to give an undertaking to the Court and if a plea of not guilty
is entered, custodial remand may continue while a trial date is
reached. Aboriginal groups have pointed out that the same
considerations apply in relation to their community. The recommendations
of the Royal Commission into Aboriginal Deaths in Custody appear to have
been totally ignored, since that Commission specifically highlighted the
need to make bail more accessible rather than less and to reduce
custodial rates which are not only high in Western Australia both
in relation to adults and juveniles but more especially in relation to
Aboriginal people.
Equally important is the fact that once again a Western Australian
Government has without reference to standards
established internationally and applied in other parts of Australia
greatly increased the powers of police to exercise control over
juveniles without adequate justification. It has removed the discretion
of the Children's Court to exercise common sense, where for example
a charge of assault occasioning bodily harm involves simply a school
yard fight leading to minor injury.
This is also to be strongly condemned.
The amendments concerning parents are innocuous enough.
The previous requirements that the
Children's Court not make orders against parents
for the payment of fines, compensation, restitution or costs except
"on being satisfied that any parent or guardian of the child has
conduced to the commission of the
offence by neglecting to exercise due care or control of the child" is
now amended to delete the requirement that the Court is satisfied of
those matters, and given the Court a discretion to order that
fines, compensation, restitution or costs
be paid by the child, parent, guardian or both
in whatever proportions the court thinks appropriate.
Although the Government has by press release suggested that
parents will in effect become automatically responsible, that is not so.
In the next issue there will be further comment on the amendments
insofar as they relate to the infamous Crime (Serious and Repeat
Offenders) Sentencing Act.
Lack of care
Stephen Wardle (18) was arrested and taken to the
East Perth (WA) lockup by police shortly after 9.00 pm on February 1,
1988.
At 5.05 am the next day his body was found by a fellow detainee.
At the inquest, seventeen police officers refused to give evidence on
the grounds of self- incrimination.
More than a year ago, new and startling evidence was provided by
Professor Bryan Finkle of the Center for Human Toxicology at the
University of Utah.
..Why has the Attorney General failed to order the reopening of the inquest?
The hidden circumstances of this death
aggravated by lack of care must be revealed.
Donations
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.......(edited by hartley wedd - peg@hwedd)