Jurisprudence Therapy in the form of the Indigenous Walama Court

By Tracey Adams

Many decades ago, as a Junior delivering Briefs to lawyers within the Court rooms of the Supreme Court in Macquarie Street, Sydney, I witnessed the austere and formidable culture of the Courts. Eventually I was in the role as witness, within what I viewed as a 'game of wits' within the judicature, after witnessing a violent assault on an elderly man. The Court culture proved to be one you had to know how to 'play', and it was both daunting and confusing, particularly for the victim. He was from a non-English speaking background and needed a translator from a specific part of Italy, which the Prosecution neglected to organise. He also hadn't been in a Court before, and at 95 years old it was an overwhelming experience for him.

Over the years I've often wondered why Courts and its processes are so intimidating and confusing for the participants. During my research in a methodology class, I was finally able to translate a concept I had imagined into a term, Jurisprudence Therapy. It's a concept that can be complex but put simply it allows a 'helpful' and 'healing' experience for defendants and a more effective process than traditional punitive criminal court processes. Jurisprudence Therapy has been slowly introduced into Australian Courts to allow participants to be in an environment that is understanding of defendant's circumstances and involves multi-disciplinary expertise and referral networks. Examples are Drug Courts, mental health and cognitive impaired lists/courts, family violence lists and courts for Aboriginal and Torres Straight Islander defendants. These matters are addressed in a 'therapeutic jurisprudence-inspired problem-solving court or list' and defendant’s issues such as mental illness, drug addiction or domestic violence victimisation are addressed.

In February 2022 Jurisprudence Therapy was introduced in the form of the Walama Court under a new pilot scheme launched in the NSW District Court and as the first of its type for the Indigenous community. It has been established to allow the process of sentencing to be a 'therapeutic' one by providing a culturally specific approach to sentencing by bringing Indigenous elders into sentencing discussions with the courtroom judge. The theory is that it will bring down re-offending.

Recent research into 'homelessness and contact with the criminal justice system' involved several Australian magistrates who were interviewed, and their Honours all suggested extending a therapeutic jurisprudence model to homelessness and investigating the possibility of a dedicated homeless court or list within Australia. An ideal criminal justice system, which would accommodate the needs of vulnerable people, would possibly transform the judicature from a 'game of wits' to potentially a 'problem-solving space' that is able to battle the serious issues that burden it.