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In New South Wales, under the ‘Protected Admissions Scheme’, young offenders (i.e., those under 18 years of age) can admit guilt to minor offences and receive a caution, avoiding the court process and possible conviction.

The scheme was introduced in 2014 as a result of negotiations between the police, Legal Aid NSW, the Aboriginal Legal Service and the Department of Police and Justice – and is now operated by NSW Police, Legal Aid NSW, and the Aboriginal Legal Service.

A ‘protected admission’ means that you can admit to the offence and police cannot use anything you said during the interview in any criminal proceedings related to the offence.

If the police offer you the opportunity to make a protected admission, and thereafter refer you for a caution or conference, and you attend and meet the related requirements – you will not need to attend court for that offence.

Essentially, it allows young offenders to confess, with police guaranteeing it will not result in a formal charge, if they receive a caution or participate in a Youth Justice Conference.

Under the scheme, police will provide the young offender with a paper that contains this information in writing.

The Protected Admissions Scheme (‘PAS’) aims to remove a barrier to diversionary schemes available to young offenders.

Under the Young Offenders Act 1997 (NSW), diversion is only available if an ‘admission of guilt’ has been made by the offender. Naturally, many young people were often reluctant to admit guilt to the police without a legitimate promise that they wouldn’t face charges or conviction.

The scheme thus seeks to facilitate admissions for the purpose of diverting young people away from the criminal justice system, and providing the security that they wont be charged where they comply.

To be able to make a protected admission, the offence committed must fall under the Young Offenders Act, with police determining that the matter is suitable for a caution to be issued.

Offences which do not fall under scheme Act include:

  • Intimidation,
  • Breaching an Apprehended Violence Order,
  • An offence which results in the death of any person,
  • Sexual offences (such as sexual touching, committing a sexual act, sexual intercourse (with a child between 10 and 16), assault with intent to have sexual intercourse (with a child between 10 and 16), and attempting to commit bestiality),
  • Drug supply (except those involving cannabis in some circumstances),
  • Traffic offences (where the child was old enough to obtain a learner licence).

Offences which do fall within the Scheme include:

  • Damaging property,
  • Stealing,
  • Break and enter,
  • Common assault, and
  • Possession of small quantities of a prohibited drug.

When considering whether a caution is suitable, police will assess the offence’s seriousness, the degree of violence involved, harm caused to any victim, and the number and type of offences previously committed by the young person.

Furthermore, a young person can only receive a maximum of 3 cautions, which may preclude them from eligibility in the protected admissions scheme.

What Happens a Child Admits to an Offence?

In terms of the caution process, a written notice will be given to you by police which will contain offence for which the caution is to be given, who may be present at the caution (i.e., a parent, caregiver, legal practitioner), the date, time and place of caution, and the name of police officer who will be giving the Caution.

It will also outline what will happen if you fail to attend (i.e., possibly being charged with the relevant offence) as well as your right to obtain legal advice and have the matter dealt with by a court.

A caution is given by a police officer or a respected member of the community at the request of a police officer (e.g. Aboriginal elder).

Cautions can take up to an hour and may involve making a written apology to the victim.

A caution being given by the police will generally involve the following steps:

  1. Introductions (i.e., the people present explaining their roles),
  2. Explanation of the reason for the caution,
  3. Delving into the offence (i.e., what happened, why, the impact of the offence on you, your family or support person, victim and community and consequences of future offending), and
    1. Note: cautions for drug matters will also likely include discussions regarding the health, social and legal implications of drug use.
  4. Identification of ways future offending can be avoided and ceased, with acceptance that a formal police record exists for the matter (i.e., police keep a record of when cautions are issued – but this is not a ‘criminal record’).

After the caution, you will be given a written caution notice containing details of the caution you have just been given which you must sign.

If you do not comply with the caution that is offered, and don’t show up at the allocated time for the caution without a reasonable excuse, the process will go back to the start of the investigation, and you may be charged.

The police have noted that they are seeking to increase the use of the protected admissions scheme, particularly amongst First Nations youth, as part of their Youth Strategy in 2023 – 2025.

However, it is important to note that the PAS is not legislated and is only a policy.

In the case of R v Jai [2023] NSWChC 9, the Children’s Court Magistrate remarked that issues related to ‘protected admissions’ have arisen frequently before the Court.

Due to this, the written judgement was prepared to reflect more fully the Court’s decision, in order to assist parties who come across the issue.

To provide context, in its introduction the judgement referenced two prior hearings where issues of ‘protected admissions’ arose.

This included that of a 10-year-old who was told by a solicitor from the Aboriginal Legal Service to participate in an interview, as they believed the matter was to be dealt with under the Young Offenders Act (‘YOA’).

The 10-year-old participated in the interview, but the police subsequently charged them. The prosecution sought to admit the interview, arguing there was never any intention to deal with the matter under the YOA and the admission was not a ‘protected admission’.

Another case involved a protected admission made by a 11-year-old in a police interview. As the young person did not attend the conference, they were charged with the offence and the prosecution sought to admit the interview at the hearing.

The matter actually dealt with in the judgement involved a 13-year-old who was charged with aggravated break and enter and travelling (being ‘carried’) in a stolen car.

The evidence sought to be admitted was a previous police interview that the young person participated in for a different offence that occurred over 9 months prior, relating to stealing an ice cream from IGA which the young person was dealt with under the YOA (indicating it was likely a ‘protected admission’ in relation to the prior offence).

During the interview, the young person was asked a series of questions, including whether certain actions were seriously wrong or naughty.

The defence identified several issues with the interview, and ultimately argued that it should not be admitted as evidence.

The Court noted that it would need to determine whether the conduct of the police officer was improper, if so whether the recorded interview was obtained improperly and, if so, whether, striking the balance mandated by section 138, the evidence was inadmissible and fourthly, if required, whether the Court should exercise its discretion given by section 90.

The sections referred to are from the Evidence Act 1995 (NSW). Section 138 provides that any evidence that was improperly or illegally obtained by the police may not be admitted by the court, unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in such a way.

Section 90 provides the Court with discretion to exclude an admissions where, having regard to the circumstances in it was made, it would be unfair to a defendant to use the evidence.

It was ultimately held that the police officer acted improperly, with the recorded interview obtained improperly as the police officer:

  • did not take appropriate steps to ensure that the young person understood the caution, in that he delivered it quickly and did not ask the young person to explain back, in his own words, what the caution meant; and
  • did not take an appropriate step of informing the young person about his right to obtain legal advice and be given an opportunity to obtain that advice.

In weighing up the importance of the evidence, the nature of the charges, the gravity of the impropriety or contravention, and other factors, the Magistrate found that the desirability of admitting the evidence did not outweigh the undesirability of admitting the evidence.

The Magistrate noted that even if they were persuaded to admit the interview, that they would have exercised their discretion under section 90 to reject it.

This was due to how it would be unfair to use the recorded interview in circumstances where the police said that ‘it can be used in Court if you don’t do the Youth Justice Conference’ when the conference was complied with.

The Magistrate noted how there was an inducement to participate in the interview because of the expectation of being dealt with under the YOA. Therefore, it would be unfair to then use the interview in different proceedings when there is no such inducement.

Therefore, the recorded interview was not admitted.

AUTHOR Poppy Morandin

Poppy Morandin is the managing law clerk and an integral part of the team of criminal lawyers at Criminal Defence Lawyers Australia . She's also a part of CDLA's content article production team. Poppy is passionate about law reform and criminal justice.

View all posts by Poppy Morandin