Where everyone’s voice is heard
Too many people leave court feeling unheard. The Chief District Court judge has a vision to change all that, writes Deborah Morris.
The courts have always seemed an us-and-them system. Police and lawyers. Offender and victim.
Courts are divided along those lines, separate seats for the participants, even the public separated from the court proper.
But wide-reaching changes to how courts operate, recently announced by Chief District Court judge Heemi Taumaunu, are set to change that.
The new vision of a court – called Te Ao Ma¯ rama (the world of light) – looks very different to now.
A judge might begin with a karakia and might not sit on a bench, although those decisions will be up to an individual judge.
It could include space for wha¯ nau to stand with the offender or victims – all of which are now add-ons to how court looks today.
Victims often complain they feel forgotten, families have no voice, and the community has no input.
There could be more plain speaking and less legal jargon, ‘‘being less stuffy’’, as Taumaunu says.
It’s a far cry from an offender standing in a dock with just a Corrections officer for company.
Judge Taumaunu calls it an all-encompassing approach, learned in part from the variety of ‘‘specialist’’ courts around the country and from the reports over three and a half decades calling for reform of the system.
Those courts include the Youth Court, Young Adults, Special Circumstances, Alcohol and Other Drug Treatment, Rangatahi and Pasifika, whose approach is called a wraparound. All the necessary services are in court to tackle the problems.
For some, it’s families being split up, their wha¯ nau weakened. For others it’s about addictions, mental health, financial pressures and the multitude of problems, such as brain damage and foetal alcohol syndrome, that are endemic in those appearing in courts.
Services such as the Salvation Army’s addiction counsellors, to Oranga Tamariki, down to advocates and community leaders from ethnic groups, will ideally be on hand for advice and support.
It could mean that cases take longer to resolve as offenders go through a judicial monitoring process to make sure they complete courses or tasks to work towards rehabilitation.
It will mean judges are set to get a wealth of information about the person before them, their ties, education, traumas and addictions, along with their medical and criminal history.
While some of that comes through courts now, the increasing use of cultural reports in recent years has proved that the more information a judge has, the better informed he or she is.
It’s also about having a voice. Not all victims want a punitive punishment for an offender.
Some want healing, some want understanding, others just want to forget it happened.
Currently, victims speak only sometimes, and usually from a victim impact statement. A great many of these are not read in court, and most often the victim’s views on punishment are never made known.
It’s not even a new idea. Therapeutic jurisprudence has been around for years. The concept that intervention, non-adversarial adjudication and a hands-on approach by judges can make a difference is easily seen by the way the specialist courts work.
Taumaunu says calls for change were not new or modern. There had been a sense of hurt deeply felt among Ma¯ ori, especially over their representation as offenders and victims and imprisonment rates.
The calls for change, coming from reports from John Rangihau, Moana Jackson and Sir Clinton Roper, were that the courts were failing to understand or protect those who appeared before them or who were affected by the business of the court.
‘‘In essence, defendants, wha¯ nau, and victims are leaving the current system feeling unheard and unappreciated. This is the most pronounced in the criminal justice system.’’
The reports also said the system over-emphasised punishment at the expense of rehabilitation, he says.
But it’s more than just physical changes. For Taumaunu it’s also about everyone having the access they need to seek justice. ‘‘The vision is simply expressed. It’s imagining the district court to be a place for all people to seek justice.’’
That is regardless of means like wealthy or impoverished, full cognitive ability or impairment, ethnicity or culture. ‘‘It should not matter who you are or where you are from.’’
It’s not just criminal either, the family and civil courts are to shift to work the same way. ‘‘It’s all-inclusive . . . anyone who is party to a proceeding.’’
Taumaunu says there is a concern that it depends on where you live whether you can access a specialist court. ‘‘We are looking to mainstream courts like Young Adults.’’
There is a lot of work to be done. How it is going to work in a busy list court with a judge facing 30 files is not yet clear, nor whether the courtrooms need physical rejigging.
With about 37,000 active cases before the district court, it could add significantly to the workload.
The first iteration will begin in Hamilton District Court this year. Taumaunu expects it to continue to evolve as it is rolled out throughout the country.
There will be an alcohol and drug treatment version within the main criminal court, and a care and protection stream aimed at young mothers at risk of having a child removed, which will be incorporated into the family and civil courts.
Each area has different needs. Some courts like Wellington might be more white-collar than a rural area and need different support services. ‘‘The courts need to reflect our communities,’’ Taumaunu says.
A co-ordinator between the court and the community is expected to be in each court, along with local kauma¯ tua, kuia and respected elders of all ethnicities.
‘‘In essence, defendants, wha¯nau, and victims are leaving the current system feeling unheard and unappreciated.’’
He says nothing about the new approach will change the way the law is administered in court. Offenders will still be held accountable, and the Sentencing Act will continue to be applied.
Carwyn Jones, Tumuaki Ta¯ ne copresident of Te Hunga
Ro¯ ia Ma¯ ori o Aotearoa (New Zealand Ma¯ ori Law Society), says the changes are supported and it is hoped they will have a significant impact.
While it is not a radical approach, it incorporates a Ma¯ ori world view, he says, and is a much more fully rounded approach.
Part of the reason the specialist courts had worked was the role of the judges, both championing the courts but also fully engaging with the people affected by the issue before them.
‘‘It’s an idea of it being a community endeavour and the community taking responsibility for a pathway forward,’’ Jones says.
There had already been ideas about a redesign of courtrooms and courthouses to allow for space for wha¯ nau, for example, and to reduce formalities.
Arti Chand, New Zealand Law Society (Te Ka¯ hui Ture o Aotearoa) vice-president (Wellington), says the shift to more solutionfocused judging is a positive initiative and it is encouraging to see the judiciary taking a lead in transforming the way district courts operate by incorporating some of the successful practices seen in the specialist therapeutic courts. Covid-19 had created a unique opportunity to collaborate and develop new ways of practice and thinking.
‘‘We also hope that initiatives like Te Ao Ma¯ rama can supplement longsignalled efforts across the justice system to improve resourcing.’’ Chand says they look forward to understanding more about how the Te Ao Ma¯ rama model will work in practice, and to working with the judiciary, Ministry of Justice and other representative organisations to ensure the model improves access to justice.
Elizabeth Hall, co-founder of the Defence Lawyers Association of New Zealand – Te Matakahi, says the announcement of a new model for district courts will focus on the underlying causes of offending, including adopting culture and processes that incorporate tikanga and te ao Ma¯ ori.
‘‘Defence lawyers have advocated for such changes over several decades,’’ she says.
The bold vision was welcomed. The current punitive jail-obsessed criminal justice regime was, as the former justice minister told the United Nations, ‘‘broken’’.
‘‘For too long, our criminal justice system has rigidly focused on a one-size-fits-all approach that minimised the role of poverty, addiction, and institutional racism.’’
The new approach is a first step, she says. There is a need for more than a simple redirection of existing resources.
Te Matakahi supports efforts to incorporate te reo and tikanga, where appropriate, acknowledging that this needs to be led by Ma¯ ori.