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Interviews with young people

Information about interviews with young people.

A practical guide to assist lawyers who are giving pre-interview advice to young people is available under More information.

Interviewing young people under Victorian law

A person does not have to agree to be interviewed unless they are under arrest. Sometimes it is difficult to tell if they have actually been arrested or not. If unsure, they should ask. Apart from the requirement to give their name and address, the person has the right t remain silent during a police interview.

See Right to silence and What is a police interview?

How long young person can be interviewed for

Police are able to interview a child for a reasonable time, however this must not happen unless:

  • the parent or guardian of child (or if not available an independent person) is present and
  • the young person has been allowed to communicate with their parent/ guardian or independent person.

The young person must be able to communicate with parent, guardian or independent person in circumstances where they will not be overheard (as far as this is practicable).

See Time person can be held for questioning and s. 464E—Crimes Act 1958 (Vic)(opens in a new window).

Independent person

The independent person should be someone that the child can trust. Independent persons are available to all police stations in Victoria through the Youth Referral and Independent Person Program (YRIPP). They are on call 24/7.

See YRIPP—Call out procedure.

Who is a child?

For the purpose of criminal proceedings under the Children Youth and Families Act 2005, a child is defined as any person aged between 10 years and under 18 at the time that an offence is alleged to have occurred. The person must also not be over 19 years old when proceedings are commenced. If a child is charged with committing an offence they must have their matter dealt with in Children's Court.

However, a child must be under 18 years old to have the right to have a person present when they are interviewed, regardless of when the offence occurred.

See Arrest of a young person—Who is a child? and s. 464E—Crimes Act 1958 (Vic)(opens in a new window).

Exceptions

The investigating official is not obliged to have parent or guardian or independent person available during the interview where police believe on reasonable grounds that:

  • evidence may be destroyed or fabricated
  • such communication would enable an accomplice to escape
  • the matter is so urgent (due to risk of safety to other people) that questioning can't be delayed, or
  • the alleged offence is a drink/drug driving offence under Road Safety Act 1986 (Vic).

See s. 464E(2), 464E(4)—Crimes Act 1958 (Vic)(opens in a new window).

Official police caution

If police form belief that young person has committed an offence they may arrange for an official caution of the young person. This should only be done where:

  • there is sufficient (admissible) evidence to establish the offence
  • any co-offenders have been interviewed
  • the offender has been co-operative
  • there is no prior criminal history (this is generally required, although a prior caution may not exclude another caution), and
  • the parent or guardian of child (or Independent Person) is present

This information is only available to staff at Victoria Legal Aid, see Practice Resources—Youth law resources—Cautions.

Questioning of young person who is already being held for another offence

Police have to apply in writing to the Children's Court for an order before police can question a child who is being held:

  • in a prison or police gaol or
  • as a forensic or security resident (or patient)

and is reasonably suspected of having committed an indictable offence.

This application must clearly state the reasons for wanting to question the young person. A copy of this application must be served on the person who is being held. (Service can either be carried out personally or to person in charge of facility where person is being held). The court can't hear the application unless the child is present and is legally represented. The court may order Legal Aid to provide legal assistance for the child although the rights of the lawyer to cross examine witnesses and make submissions are limited.

The Children's Court must form belief that it is in the interests of justice to allow person to be questioned for the new offence.

Questioning must be done at the place where the child is currently being held unless this is not practical.

Unlike the situation with adults, a child cannot agree to being questioned without a court order being made.

See s. 464B(5B)—Crimes Act 1958 (Vic)(opens in a new window).

How long child can be held

The maximum length of time that person is allowed to be questioned must be written in the order. When determining the maximum time for questioning a court must consider the reasonable time factors listed and also the age of the child.

Video recording

If order is made to allow questioning of child being held for another offence, a video recording must be made of:

  • all questioning and person's responses to questioning
  • police caution and person's response to this caution.

See Recording the interview.

Caution

The young person must be told of their rights by the magistrate of the Children's Court who makes the order. The police officer who is conducting the questioning must also tell the child their rights.

See Right to silence and What is a police interview?

Extension of time for questioning

The court cannot make an order that allows the time for questioning to be extended or for a second (or subsequent) period of questioning to be carried out unless it is satisfied that it is in the interests of justice to make such order.

More information

Legislation

Crimes Act 1958 (Vic)

  • s. 464B—questioning or investigation of person already held for another matter
  • s. 464E—persons under 18 years

See Crimes Act 1958 (Vic)(opens in a new window).

Legal Aid Act 1978 (Vic)

  • s. 26(1)—certain legal aid to be provided without charge

See Legal Aid Act 1978 (Vic)(opens in a new window).

Road Safety Act 1986 (Vic)

  • s. 49(1)—creates drink and drug driving offences

See Road Safety Act 1986 (Vic)(opens in a new window).

References

VLA website

VLA's Professional Support Lawyer for youth has developed a practical guide for lawyers who are preparing to give advice to a young person who is in police custody.

  • 'Guide to giving pre-interview advice to children in police custody'
  • 'Record of instructions pre-interview advice'

To access the information the user will need to scroll to the bottom of this page to the 'Children's Court Criminal Division.

See Information for lawyers—Practice resources—Criminal law resources(opens in a new window).

This information is only available to staff at Victoria Legal Aid Practice Resources—Youth law resources—Cautions(opens in a new window).

Lawyer's Practice Manual

Westlaw's manual has information about the way children must be treated during questioning.

Note: This resource is only available to staff at Victoria Legal Aid.

See Police interviews with children [6.1.401](opens in a new window).

Youth Referral and Independent Persons Program

This program uses adult volunteers to attend police interviews with young people who are in police custody when a parent or guardian is not available. The organisation also provides training and support for these volunteers.

See YRIPP—Call out procedure(opens in a new window).

Updated