New Zealand Law Society - Courts can be ‘circuit-breaker’ for violence

Courts can be ‘circuit-breaker’ for violence

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Genuine potential exists for the courts to be a “circuit breaker” for families trapped by violence, according to Chief District Court Judge Jan-Marie Doogue.

“Judges of the District Court are willing to play our part,” Chief Judge Doogue told the Auckland Women Lawyers’ Association Criminal Justice Forum on domestic violence on 10 March.

“But there are caveats. These relate to how much more courts can do safely and effectively within current resource constraints and existing legislation.

“So willing? Yes. Able? Not as much as we would like to be,” Chief Judge Doogue said.

“For vulnerable people whose level of injury and hurt suggest the principle ‘do no harm’ has been utterly absent from their lives, it is vital that at the very least the justice system should do no further harm. Yet we are being told loud and clear that many of these people feel let down by the justice system or, worse, that it amplifies their trauma – and worst of all, that it may put them in more danger.

“Firstly, can I assure you that District Court Judges have been listening.

“We are attentive to the debate around better addressing family violence, and to suggestions for making the path to justice for sexual violence complainants, in particular, less traumatic.”

Judges are already taking steps – and plan to take more – to help ensure family and sexual violence cases are dealt with more effectively, safely and sensitively within the limitations of the current legal framework and justice infrastructure, Chief Judge Doogue said.

Series of initiatives

“In the District Courts we have started a series of initiatives to give judges a solid knowledge of the dynamics of family violence and its complexities; and also to ensure we draw on all the knowledge and relevant information about individual cases so we make sound, safe decisions.

“A standout example of this is the so-called ‘Judge’s Pack’, an information sharing system being piloted among judges when considering both opposed and unopposed bail applications.

“They include Family Violence Summary Reports which give judges access to information held by Police on a defendant’s family violence history. These flag any prior family violence records, as well as all police safety orders, protection orders and breaches.

“Judge John Walker, who is based in Porirua, took a lead in developing the concept with police and the Ministry of Justice.

“The pilots at Porirua and Christchurch were introduced last September and will be subject to full evaluation.

“The approach is testament to what can be achieved when the collective minds of those at the sharp end of the administration of justice are encouraged to innovate and share ideas, and are supported by government in doing so.”

Gaining plaudits

Another judge-led initiative in Whangarei aims to reduce stress on child witnesses and anecdotally, is getting plaudits from police, prosecutors and victims advisors.

“Judge Duncan Harvey blazed the trail here. Concerned about the impact trial processes were having on children, especially in cases that involve sex offending, Judge Harvey began thinking about possible innovations to lessen the impact of Court proceedings on these vulnerable witnesses.

“At the same time he wanted to ensure, as far as possible, that the court got the best evidence and thus a fair trial.

“It seemed to Judge Harvey that these two goals were intrinsically linked. The trial processes that were having a traumatising effect on child witnesses appeared also to be resulting in potentially valuable evidence being lost or obscured.

“The Whangarei jury judges put their heads together, did their homework and developed a set of practices to address this. They include simple improvements that do not rely on law changes, such as making the rooms where children give evidence by video link child friendly.

“Children are no longer left waiting around to give evidence. They are not brought to the courthouse till half an hour before they are called. And child witnesses get to meet the judge and counsel in person before they encounter them on screen, which seems to give children more confidence.

Judicial education

“Judicial education is crucial not only to ensuring these sorts of initiatives get good uptake, but also to improving the quality and fairness of justice administered in family and sexual violence cases.”

Judges are committed to lifting our understanding of the complex dynamics of family violence and abuse.

“Last year’s three-day District Court Judges’ Triennial Conference was the first time in the history of the District Court Bench that the entire conference was devoted to a single subject. That subject was family and sexual violence.

“Newly appointed judges are now put through an intensive programme that places considerable emphasis on family violence education. Family violence training is also a recurring component of the Community Magistrates’ annual conference.

“So that education can reach as many judges as possible, the Institute of Judicial Studies programme this year will include two rotations of a two-day workshop on family violence. And there are plans to provide judges with updates on emerging family and sexual violence-related topics throughout the year. Day-long updates have already been scheduled in five major centres throughout April.

“There is still more to do,” Chief Judge Doogue said.

Specialist courts

“Most recently I have turned my mind to the recommendations of the Law Commission on the Justice Response to Sexual Violence. I have paid particular attention to the recommendation for specialist sexual violence courts.

“Tonight I can share with you my intention to explore the feasibility of such courts.

“A steering committee to consider the issue met for the first time last week and includes representatives from the Ministry of Justice, Police, Crown solicitors, the Law Society and the Bar Association.”

Specialist courts are not new in New Zealand. “We already have dedicated family violence court sittings, though I am the first to acknowledge that these are not the sort of integrated courts the Family Violence Death Review Committee, among others, wants to see explored. The legislative framework we must work within provides no facility for this at the moment.

“Alternatives such as inquisitorial-style courts, treatment courts or ‘one-Judge-one-family’ courts spanning several jurisdictions all require legislative mandate and a fundamental shift in approach.

“Even the changes envisaged by the Law Commission for the rules of evidence to lessen the trauma for adult complainants in sexual violence cases would require a law change.”

For now, any new sexual violence courts would have to be set up within existing legal provisions and jurisdictions and relying on organisational and practice change.

“There is no escaping the fact that intensive or ‘wrap around’ courts like those we operate in the Youth jurisdiction and the two pilots of the Alcohol and Other Drug Treatment Courts are expensive in the short term. But I trust the so-called investment approach to justice we hear talked about will eventually see the long-term value of these sorts of initiatives.

“I stress that, ultimately, these are decisions for elected lawmakers.

“Better practices should be taken in parallel with other advances that modernise, strengthen and enhance the fair and impartial delivery of justice overall – in all our courts, Chief Judge Doogue said.

Need for education

“I’m not so naïve as to think that prosecution is the solution to our unacceptable family violence problem,” Natalie Walker, Crown Solicitor for Manukau, told the forum. Prosecution and legislative reform aren’t a magic bullet, she said.

“Most of our energy should go into education and strategies for intervention to protect victims – education of children before they become adult offenders, or victims, or mute bystanders to the problem; education of victims; and education of offenders.”

Ms Walker outlined two positive developments “I think should be supported”.

One is the Gandhi Nivas (Man of Peace) safe house in Otahuhu. This is a Police-backed community initiative – the brainchild of Ranjna Patel, the director of Nirvana Health Group.

“Instead of the wife and children having to seek refuge outside the home, or the husband served with a Police Safety Order sleeping in a car until he decides enough is enough and breaches it and comes home, Gandhi Nivas provides a place for men to go and stay.

“As far as I’m aware, it’s the only residential non-violence programme for men in New Zealand. It has 12 beds, cooking facilities, a live-in social worker and access to counsellors – all for free.”

It has been operating for 15 months “and is achieving great results,” Ms Walker said.

The second initiative is a documentary, Making Good Men, which will screen later this year on Prime TV. It’s the story of All Black Norm Hewitt and Hollywood actor Many Bennett. Norm heat Manu up at Te Aute College in Napier.

“What’s important about the documentary is that we see where that violence came from – from Norm’s own childhood of family violence (as victim and witness to his father’s violence against his mother). And what’s doubly important about this documentary is that it’s about two successful Māori men confronting, acknowledging and moving beyond this past.

“It’s emotional and powerful and I think if it reaches a wide audience it could be transformative in our society,” Ms Walker said.

Far reaching

“The tentacles of family violence are long and far reaching,” Jacinda Ardern, Labour MP and justice spokesperson, said.

“We all know that, but my concern is that far too often we underestimate the impact on children.

“First, I want to acknowledge that for good reason there is a huge amount of focus on the violence experienced by women. One in three partnered women will experience physical or sexual intimate partner violence in their lifetime.

“But these women are not just partners. They are often mothers who care desperately for their children.

“Of the almost 102,000 family violence investigations undertaken by the police in 2014, more than 60% involved at least one child.

“And of all those who were killed in family violence related incidents in the four years to 2013, 77 children were present to witness the death.

“My question is, what happens to these kids? And should we only be worried if they themselves are at risk of being physically harmed?

“Research tells us that the answer to the latter, is no.”

Best predictor

One report Ms Ardern quoted was undertaken by UNICEF.

It concluded that “the single best predictor of children becoming either perpetrators or victims of domestic violence later in life is whether or not they grew up in a home where there is domestic violence”.

“I believe we can create big and long-term change, but it will require us to go back to the very beginning,” Ms Ardern said.

“If the biggest determinant of whether we grow perpetrators of violence in this country, is if they are exposed to it, let’s do all we can to support our mothers. And by support, I do not mean telling them that if they stay in a violent relationship that they will lose their children. That does not constitute support. I mean non-judgmental support based on decent long-term relationships.”

For far too long, Ms Ardern said, “we have placed the onus on woman to keep both themselves, and their children safe. We need to do much more to make sure that it is not their job to do it alone, or lose sight of the role of the perpetrator.

“The family violence death review committee acknowledged this in their last report.”

Another point raised by the family violence death review committee was that “there must be more focus on the person using violence, in addition to the victim – changing the behaviours of those using violence is the most effective way to prevent family violence”.

Access problem

“We currently exist in a system where it is incredibly difficult to access free family violence programmes, unless you act violently, someone reports that violence, the police attend, and chose to arrest and charge you, and you are court referred. We need to make this support more accessible,” Ms Ardern said.

“If we can predict where family violence begins, then we can plan how to make sure that is where it ends. We must get better at using the red flags we have, being systematic, comprehensive and deliberate in the response we provide. To do anything else, is to doom yet another generation.”

When opening the forum, the chair – Auckland barrister Anita Killeen – commented on the connection between family violence and animal cruelty.

“The impetus for this Criminal Justice Forum came about last year when the Government released a public discussion document titled Strengthening New Zealand’s legislative response to family violence, she said.

“On behalf of the Pro Bono Panel of Prosecutors for the SPCA Auckland I put in a submission which focused on the connection between family violence and animal cruelty.

“Specifically, my submission drew attention to the fact that animal cruelty can be a marker of domestic violence and companion animal abuse often co-occurs in the context of family violence.”

That submission emphasised that amending the Domestic Violence Act to expressly allow protection orders to cover animals is a measure that might well contribute in a meaningful way to the reduction of violence in society, Ms Killeen said.

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