Derived from David Wexler and Bruce Winnick’s work on mental health law (1989), therapeutic jurisprudence (TJ) has since been advocated for as a means of improving the psychological wellbeing of those involved in the justice system. This report uses cases observed (as described below) to explore the need for greater consideration of TJ within mainstream adversarial courts, such as the County Court of Victoria. This is because non-adversarial problem solving courts, such as the Koori Court, with their focus on judicial interaction, as well as the self-determination and rehabilitation of the accused, have a greater therapeutic impact on not only the accused, but also the other legal actors involved.
The cases discussed were observed on the 20th of March, 2017.
The first case was observed in the Koori Division of the Magistrates’ Court and was presided over by Magistrate Wellington and two Koori elders. The latter were seated on either side of Magistrate Wellington at the bar table. This was shared by a Koori Court Officer, Corrections Victoria Officer, the offender, their defence counsel, and finally, the prosecutor.
The offender, Ms Jones, was charged for theft of products worth $250, from a department store. Ms Jones was an Indigenous offender who made a guilty plea, thus was able to be sentenced in the Koori Court. This option is not available to those who do not identify themselves as Indigenous Australian and do not plead guilty. Ms Jones spoke directly with Magistrate Wellington and the Koori elders about her abusive relationship and suffering of post-traumatic stress disorder. Magistrate Wellington suggested Ms Jones attend a mental health service that specifically targets Indigenous Australians, and allowed Ms Jones to choose the Victorian Aboriginal Health Service (VAHS), which she must attend within the next 2 months. Ms Jones was given no conviction.
The second case was a preliminary hearing observed in the County Court and was presided over by Judge Lacana. The defendant in this case, Mr Taylor, was charged alongside two colleagues for fraud and financial deception due to forging documents to defraud clients, allowing him to accumulate over $100 million in loans. Judge Lacana had an oppressively negative attitude, and expressed dissatisfaction in the legal counsels’ preparation for the upcoming trial. After ordering the defence counsel to issue subpoenas to relevant witnesses, Judge Lacana adjourned the trial till Wednesday the 19th of April to allow the parties for further time to prepare.
The Adversary System
The primary means through which the Koori Court exhibited TJ was its inherent rejection of the adversary system. Based on its requirements that two parties present their case to an impartial adjudicator in accordance with strict rules of evidence and procedure, the adversary system has come under scrutiny for the emotional impact it can have on those involved. Criminology professors Meredith Rossner and David Gait go as far to claim it epitomises the ‘failures of traditional western-style processes’ with its intimidation and humiliation of the victims and their families, and its marginalisation of the accused – both of which undermine TJ.
Such marginalisation could be seen from the mere layout of the County Court. Mr Taylor was seated in a box at the back of the room, distanced from the bar table and judicial bench. This distance legitimised the unwillingness of the court to consider Mr Taylor’s individual circumstance. This was antithetical to the proceedings of the Koori Court, which broke down the conventional barriers enforced by the adversary system. Instead of a judicial bench, Magistrate Wellington was seated at the bar table with the accused. Here, the power complex of the Magistrate was eradicated, and the offender was provided with a ‘place and voice’ where they could express their concerns and interact with the judicial officer.
Indeed, it was the high level of judicial interaction between the offender and Magistrate that allowed for the Koori Court to reach a therapeutic resolution. Ms Wellington adopted a conversational tone in expressing genuine concern for Ms Jones’ wellbeing, who in turn, felt comfortable speaking about her troubled past. This established a sense of ease at the bar table, which was furthered by the presence of the Koori elders. Their sole responsibility is to help facilitate culturally appropriate justice by acting as advisors to the Magistrate, and thus reminded Ms Jones that the court respected Indigenous culture.
Unofficially, however, Koori elders are known for increasing offenders’ accountability by posing questions that force the offender to recognise the implications of their actions. For example, one of the elders asked Ms Jones if she realised her actions perpetuated existing negative stereotypes of Indigenous offenders. Not only did such questioning elicit remorse from Ms Jones, thus ensuring she would be satisfied with her final order, but it could reduce the likelihood of her reoffending. This is supported by Wexler himself, who draws on the ideas of psychotherapist Donald Meichenbaum’s Facilitating Treatment Adherance: A Practitioners Guidebook, when claiming that the likelihood of a one’s compliance with certain conditions increases if such compliance is agreed upon before persons above and beyond a judicial officer. Thus, in the Koori Court, in Ms Jones making a commitment to a suggested condition before respected elders of her own community, the likelihood of her compliance with this condition increases.
Mr Taylor’s case, however, was devoid of the judicial concern displayed by Magistrate Wellington. Judge Lacana did not interact with Mr Taylor at all, rather, was instead berating the legal counsels’ preparation for the upcoming trial, denouncing it as “unprofessional” and “embarrassing.” Such conduct showed a complete disregard of TJ, and placed additional strain on both the legal representatives’ and Mr Taylor’s emotional states.
Another significant factor that constituted the conduct of the Koori Court as therapeutic was that it encouraged the self-determination of the offender. For instance, the condition of attending VAHS was not established by Magistrate Worthington, but rather, chosen by Ms Jones as a centre she would feel comfortable attending. As a result, the offender played a role in decision-making. This allows them to increase control over their life and provide them with direction, increasing their satisfaction with the outcome and hence, their chances of reform. Professor Shadd Maruna would concur, who emphasises the need for the offender to feel in control of their future as a means of reducing recidivism and increasing their likelihood of rehabilitation. Once again, this was not present in Mr Taylor’s case, who, due to limited judicial interaction, was likely to have felt powerless in altering his individual circumstance.
Thus, the more self-determined an offender, the greater the possibility for the offender’s rehabilitation. This possibility promotes TJ in that in can improve offender’s quality of life, and consequently, their mental wellbeing. A method of ensuring this is the “cognitive behavioural” theory outlined in James McGuire’s book What Works: Reducing Reoffending, which encourages offenders to think before acting and understanding the consequences of such actions. This theory could have been in the County Court, but more easily in the Koori Court. For example, Magistrate Wellington could have asked Ms Jones about her motivations behind the theft, and the reasons why fulfilling such motivations in future are not worth the legal repercussions that may follow. Such questioning increases understanding and sympathy amongst the legal counsels and Magistrate, but also promotes a process of ‘self-efficacy’ in the offender – what Michael King defines as ‘a person’s confidence in their ability to initiate and maintain change.’
Consequently, adopting a non-adversarial within mainstream courts, such as the County Court, can be a means of broadening the use of TJ. This was evident in the proceedings of the Koori Court, through its focus on positive judicial interaction amongst the offender and the judicial officer and encouragement of the self-determination of the accused. Nonetheless, a greater consideration for the rehabilitation of the offender could be established in both problem-solving and mainstreams courts, by promoting self-awareness and change within the offender.
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