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Chief Judge releases long-awaited framework for new-look District Court

16 Feb 2024

| Author: Reweti Kohere

A long-awaited and highly anticipated best-practice framework has been released about Te Ao Mārama, the District Court’s landmark initiative incorporating the hallmarks of specialist and therapeutic courts into its mainstream criminal, family and youth work.

Two years in the making, the document outlines eight bestpractice approaches for how lawyers, court staff, judicial officers, government agencies and local communities can implement the initiative and help it grow locally to ensure defendants, victims and whānau “feel seen, heard, understood” as they participate in the court process.

The framework also details how the approaches can be applied in the Family Court, Youth Court and criminal jurisdiction of the District Court. The nearly 60-page paper acknowledges that some of the approaches might require additional resourcing, although it says a clear mandate is given for those that can be adopted nationwide without needing further support.

Led by Chief District Court Judge Heemi Taumaunu (Ngāti Pōrou, Ngāti Konohi and Ngāi Tahu), Te Ao Mārama is intended to include all cultures and ethnicities in Aotearoa New Zealand, for the benefit of all people who are affected by the business of the country’s busiest court. Seeking to emphasise restoration, rehabilitation and healing, the initiative will incorporate solution-focused judging; screening for addiction, neurodiversity and mental health issues; the use of plain language; revised courtroom layouts; tikanga Māori and other best practices developed in the specialist and therapeutic courts.

Te Ao Mārama, which means “the world of light” in te reo Māori, has already launched in Hamilton, Gisborne and Kaitāia and five other locations are being considered, Chief Judge Taumaunu says. “However, as the framework makes clear, there are a number of Te Ao Mārama best practice approaches in the family, youth and criminal jurisdictions that can be adopted now. The framework provides the mandate to do that.”

Te Ao Mārama is “ambitious but necessary”, the chief judge says. “At the heart of it, it involves enhancing the court’s connection to the community, inviting the strength of the community into our courtrooms, adopting solution-focused and therapeutic approaches (where appropriate) and ensuring people are heard and understood and feel they have had a fair hearing”.

 

Courtesy and compassion

The court’s close connection to the community it serves will form the basis for the first best-practice approach. Under Te Ao Mārama, these local connections will be enhanced, with judicial officers having the opportunity to welcome relevant community-based organisations and service providers into the courtroom to provide knowledge, information and social services and support.

Improving the quality of information that judicial officers receive to inform their decisions is the second approach. An information-sharing protocol will enable judicial officers to gain access to relevant and legally obtainable reports and information, while giving justice sector agencies and community organisations the ability to share such information on the basis that better information leads to better decisions.

Processes for victims and complainants will be improved. Under this third approach, all victims and affected whānau will be treated with “courtesy and compassion, and their dignity and privacy respected”, the document states. Their comfort and safety will be provided for by best-practice court processes, including by eliminating the chances of defendants and victims being present in the courtroom together and offering victims and whānau other means of addressing the court.

Informing this approach is the treatment of victims of sexual and family violence. The document states their participation must be safeguarded. “The District Court should be a place where victims of sexual and family violence can meaningfully express their views and have those views acknowledged and taken into account.” The court also recognised that complex dynamics between parties exist, that children exposed to sexual and family violence may experience lasting harm and that progressing sexual and family violence cases through the courts takes courage.

The fourth approach will ensure people feel heard in the courtroom by encouraging judicial officers and court staff to establish eye contact and other non-verbal cues; greeting people by their preferred name (with correct pronunciation) and pronouns; and allowing participants to share their perspectives and story without prejudicing their position.

 

Solution-focused judging

Used to good effect in the therapeutic courts, alternative courtroom layouts will underscore the fifth approach to Te Ao Mārama. The document notes their design and use will require a risk assessment to ensure the safety of all participants. Some examples include a boardroom-style table formation, as seen in the Alcohol and Other Drug Treatment Court, and a horseshoestyle formation, as used in many Youth Court locations and Te Kōti Rangatahi.

Simplifying the language used in court will also help. Moreover, based on the court’s experience, many people appearing will have at least one form of neurodiversity, meaning more must be done to ensure they fully understand what is happening. Under the sixth approach, plain language will be used so participants, including the public, comprehend each stage of the court process as it occurs. Alternative communication formats, such as braille and New Zealand sign language videos, should also be provided if available. Moreover, a consistent approach to toned-down formalities may be implemented. The document acknowledges that while the mana and solemnity of the court must be maintained, formalities can get in the way of effective participation.

Finally, solution-focused judging – which looks into the causes of a person’s appearance in court – will be adopted. Some existing examples include the family group conference, a cornerstone of the Youth Court process whereby meeting the needs of the child or young person is the participants’ aim and Youth Court judges actively engaging with children and young people and their whānau while facilitating inter-agency cooperation.

Chief Judge Taumaunu says the initiative won’t change the substance of the law or mechanisms put in place to protect court processes, “but it does call for new behaviours, new information, new services and new processes”. Some Te Ao Mārama court lists and processes (such as the care and protection list in the Family Court and the family violence list in the District Court’s criminal jurisdiction) will be designed, developed and implemented in District Court locations. Other list courts and processes – the Youth Drug Court, the Matariki list, and the Special Circumstances Court, to name a few – might be designed, developed and implemented in District Court locations. In both instances, “relevant local priorities” will inform which list courts and processes are established first.

From time to time, the Chief District Court Judge will also assign judges to give local leadership in the continued operation of local Te Ao Mārama court lists and processes. These judges will be responsible for convening and holding at regular intervals local stakeholder meetings and workshops. They will also be tasked with updating their respective executive judges every quarter, with copies of their reports sent to the chief judge.

 

Family Court

The document outlines guidelines for how the eight approaches might be implemented throughout the District Court’s work. In many Family Courts, some processes and practices already align with Te Ao Mārama. Starting with care and protection and family violence proceedings, the initiative’s next stage will learn from, build upon and enhance these existing practices.

Embedding Te Ao Mārama within the Family Court will depend on judicial officers receiving high-quality information, welcoming local communities into the courtroom, ensuring community-based organisations are properly resourced, and supporting meaningful participation of children, parties and their whānau. Having the same judicial officer will be encouraged in courts where there are sufficient judges and where scheduling permits. In doing so, judicial officers will be able to build rapport with parties, resulting in greater familiarity with their issues.

Where relevant, judicial officers can incorporate te reo and tikanga Māori or any other cultural practices. Specific processes may be designed and put into practice in each Family Court, with attention given to collaborating with local iwi and wider communities. In areas where high proportions of tamariki Māori and their whānau, hapū and iwi are dealt with, alternative venues to the Family Court may be explored, including hearings held on marae. Safety concerns for all participants will be a primary consideration, especially where family violence is alleged or particular parties are vulnerable.

An important intermediary will be kaiārahi, appointed to form solid connections between the courts and the local communities they serve. Kaiārahi provide participants with information, guidance and support as they make their way through the Family Court. It is envisaged that judicial officers will be able to engage with their local kaiārahi to obtain good-quality information, including what local resources are accessible to the parties.

The document then details process maps for care and protection and family violence proceedings, before concluding that the Family Court is a priority area of Te Ao Mārama.

 

Youth Court

Since the Oranga Tamariki Act came into force in 1989, the Youth Court has heavily influenced solution-focused judging in the criminal jurisdiction of the District Court. Many of the best practices in the framework arise from lessons learned over many decades in the Youth Court, the document states.

In using family group conferences, the Youth Court can enable victims to be involved in restorative justice while ensuring young people are held accountable for their offending and that their needs are met in a highly personalised way. In recognition of the principles set out in s 208 of the Act, criminal proceedings in the Youth Court should be a matter of last resort, the document states – about 75% to 80% of all young offenders are diverted away from the court and are dealt with by alternative action.

Te Ao Mārama will work best in the Youth Court where the court is highly connected with the community it serves. It may require government agencies to resource and support community and iwi-based organisations, whose social services will help young people and their whānau address the underlying causes of their offending.

Resourcing tikanga-based programs must also continue, the document states, given the over-representation of Māori in the Youth Court. Te Ao Mārama will establish community and/or iwi panels to operate in courthouses and alternative hearing centres are also being explored. “This ensures an ongoing commitment to enhance community engagement and the flexibility to use available and appropriate community venues. Further, it facilitates direct access to services and builds sustainable supports for whānau well after court proceedings end.”

Process guides are outlined for Te Kōti Rangatahi, established in 2008 to provide a more culturally responsive and appropriate process for Māori appearing before the Youth Court, and the Pasifika Court, established two years later and based on the Te Kōti Rangatahi concept.

 

Criminal Court

Timely justice underpins Te Ao Mārama – especially in the criminal jurisdiction. Where there is prompt disclosure, the document states, “advice to defendants is not delayed and can facilitate prompt pleas”. Early consideration of pre-sentence plans will be given to those who plead guilty.

Pre-sentence plans are routinely used by solution-focused judging approaches in the criminal jurisdiction, although judicial officers use their discretion when approving them. “Not all cases will be suitable for a solution-focused approach. Ideally, the judicial officer who approves a pre-sentence plan should also be the judicial officer who imposes sentence,” the document states. Given the plans are necessary to help improve the system, they will likely increase judges’ workload and require greater resourcing. The document states relevant justice sector agencies must work together to design and implement the initiative.

It’s imagined a judicial officer might serve as “an authority figure and motivator”, taking an interest in the defendant’s life as would others in the community who are supporting their pre-sentence plan. However, even when adopting a solution-focused judging approach, “there is no expectation judicial officers will engage in monitoring any pre-sentence plan”, the document states. “This will be determined through a case-by-case assessment.”

While it will be difficult to prescribe the exact number of appearances a defendant might need to complete his or her pre-sentence plan, the number of monitoring appearances needed after a guilty plea has been entered should be, as a guiding principle, limited to two: the first being three months after a guilty plea has been entered and the second being three months later if the plan hasn’t been completed. Sentencing should typically occur at this second stage; additional adjournments will rarely be granted.

The document is also explicit about the initiative and fair trial rights: nothing within it is meant to infringe upon those rights guaranteed by the New Zealand Bill of Rights Act 1990 or any other statute. “Judicial officers must continue to apply the law and all relevant legal principles and must continue to provide reasons for their decisions.” Solution-focused judging will become available in criminal proceedings only if defendants plead guilty or are found guilty and accept the verdict, the document states. Where a not-guilty plea is entered, existing fair trial rights apply. ■

Read the document here

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