Ensuring that young adult defendants can be seen, heard, understood, and can meaningfully participate in the courtroom process is the goal of the Young Adult List at Porirua District Court. The court has made changes to reduce legal jargon, keep whānau involved in the process and put in place a plan to help young people grow and develop.
By Michael Johnson
Walking into a sitting of the Young Adult List at Porirua District Court it’s clear from the outset that this is not your usual courtroom.
It is lined with a series of carvings gifted by Ngāti Toa Rangatira. Taurapa Kōrure, the carving that greets everyone who enters Porirua District Court, talks about changing direction. Carvings around the walls of Courtroom 1 tell the story of Porirua City, from when Kupe discovered Porirua, through to the now multi-cultural nature of Porirua.
It’s not surprising that this court has been the setting for a unique trial in Aotearoa New Zealand aimed at better supporting young people into a pathway away from repeated interactions with the law.
The Young Adult List Court sits in Porirua every Friday and the city’s resident Judge, Judge James Johnston, primarily presides over the hearings. However as the person who led the YAL’s development, the Principal Youth Court Judge, Judge John Walker also takes a turn on the Bench from time to time. The pilot for those aged 18- to 25 is designed to ensure young adult defendants can be seen, heard, understood, and meaningfully participate in the courtroom process.
From his years of sitting in the Youth Court Judge Walker sees the patterns amongst defendants, the shared life experiences and the sometimes subtle but impactful barriers they face to effectively engaging in the court process.
“We are seeing many of our young people coming into the Youth Court with a neuro-disability of some description,” says Judge Walker. “And I’m including within that, such things as autism, acquired brain injury, foetal alcohol spectrum disorder, and dyslexia.
“There is a high prevalence of mental illness and exposure to trauma, including sexual abuse, and exposure to family violence.
“We now know that those matters are not just a pre-curser to some learned behaviour or acceptance that violence is okay in a relationship, but it also has an effect on brain development.”
Young people being seen in the Youth Court with these barriers to participation often have other compounding issues such as alcohol and other drug dependency and dislocation from education.
“In the Youth Court, we have become very alert to these issues that our young people may be experiencing,” says Judge Walker. “An important thing to remember is that their brains are still developing at this stage so it’s not surprising that these young people have difficulties understanding what is happening in the court and communicating their contribution to the process.”
When a young person transitions from the Youth Court to the District Court, they still have issues that may have been identified in the Youth Court, but are now treated as a fully functioning adult, without the accommodations and support of a Youth Court environment.
“Many of my colleagues, who sit in both courts, will have had the experience of seeing a young person who they know, either from care and protection jurisdiction or from the Youth Court, who has significant barriers to participation in the court process,” says Judge Walker.
“They have seen them appear in the District Court with everybody around them, including lawyers, unaware of that history.”
“It would only be by chance that the Judge might say, ‘hang on, last year, in the Youth Court, this person was found unfit to stand trial,’ for example. Or there were serious issues around their cognition, or they have foetal alcohol spectrum disorder.”
Material from the Family Court and the Youth Court does not automatically follow a person into the District Court. Judges must request any relevant files and information from the judges in those other courts.
Taking account of the fact that young people up to the age of 25 still have developing brains is an important part of the court process for Judge Walker. But he says the high prevalence of neuro-disabilities among young people entering the judicial system points to the need to change the process.
A prevalence study matching parts of the Integrated Data Infrastructure (IDI) of those who had been to hospital for concussion or brain injury, those who made an ACC claim, and those who went to court, shows that nearly 42 percent of people coming into the District Court have an acquired brain injury. For the prison population, the figure is about 60 percent.
“We know that not everyone in our court goes to hospital after being knocked out or makes an ACC claim, so it would be fair to say that it would be closer to 50 percent,” says Judge Walker.
“So, half of the people you see are going to have an acquired brain injury. This will have an effect on cognition and behaviour and will be part of the underlying reason for their offending behaviour.”
The first thing the pilot did was separate out the 18- to 25-year-olds as a group in the court’s lists and put them into a separate day.
“We started with that, so at least we knew we were in that court on a day, where, more likely than not, there would be something at play which is a barrier to participation,” says Judge Walker. “We educated everybody in the court about those barriers, so we were all alert.”
Renee Higgison, Service Manager at Porirua District court says another important step was the establishment of a protocol to identify if the young adult has a history in the Youth or Family Court system.
“When charges get filed for an 18- to 25-year-old, we look to see if they have any relevant history. If they do, we let the judge know, so they can request the Youth Court file from the Youth Court judge or Family Court file from the Family Court judge.”
“If they have been in the Youth Court, we can find out what happened there and any underlying issues that were dealt with,” says Judge Walker.
“Often, sitting on those files are AOD assessments, psychological reports, psychiatric reports, and cultural reports. A wealth of information that helps us understand the young person and the issues they may have. That information cannot be used to the detriment of the young adult.”
Alcohol and other drug (AOD) screening happens in the court and always has done while Judge Walker has been sitting at Porirua court. While the AOD screener looks for dependency issues, it can also throw up mental health issues and also dyslexia. A simple technique used by the screener is to ask a defendant to fill in their name and address on the form.
If they don’t want to do this that can be an important signal, giving the team a heads up in a non-threatening way that there may be reading and writing issues. It shows that giving this person a bail form or a written direction could be problematic.
To help everyone in the courtroom understand what is going on, those involved in the Youth Adult List Court avoid using legal jargon.
To get input from young people who had experienced the court system, Judge Walker went to Rimutaka Prison to talk to 18- to 25-year-olds to see what they thought about the court process. One of the participants in the group said, “it would be good if you just talked normal.”
“It is really easy for our profession to drop into jargon,” says Judge Walker. “We say things that trip off our tongue like “you are remanded to… and here are your bail conditions… you are to reside… you are not to consume alcohol… you are not to associate… you are not to offer violence… When you think about those phrases, what do they actually mean to the young people in court?
“We expect young people to comply with bail conditions that they don’t understand, and when they don’t, they come to court on a breach. Then we impose them again and maybe add a bit more complicated language around it,” says Judge Walker.
Louise Brown, Duty Lawyer Supervisor at Porirua District court has seen the benefits of using plain English when talking with her clients.
“When I talk to my clients, I talk about bail conditions as the rules,” says Louise.
“Talking about breach of bail conditions is not always understood, but people do understand talking about not breaking the rules. For young adults, we have seen much less breaching of bail conditions, now we use simple plain language and check for understanding.”
Alongside information sharing, plain language and separating the cohort out, the Young Adult List Court also includes specialised services that assist judges and lawyers to operate in a solution-focused way.
A specialist prosecutor, with an understanding of these concepts and what the court might be dealing with, was part of the development of the court from the very beginning.
The lawyers who regularly appear at Porirua Court have been part of the development for more than two years, having been part of discussions at lunchtime workshops about the goals and aims of the Young Adult List.
The very dedicated Duty Lawyer Supervisor, Louise Brown, has been there from the very beginning and drives a lot of the work and education of other lawyers.
Service Manager, Renee Higgison, has also been involved right from the outset, manging changes to the court setting, teaching and promoting the purpose of the Young Adult List.
A small change has been made to the architecture in the courtroom. The defence always takes the seat closest to the defendant rather than previously finding one anywhere that was available.
“Defendants have told us that standing in the dock is scary,” says Judge Walker. “They felt really isolated. So, now we put the lawyer right next to them.”
As a result of this small but significant move, Judge Walker has observed that a discourse is now often taking place, with the lawyer checking on things with the defendant.
“That is a really simple thing. Nothing very revolutionary about that. It is just responding to what people have said to us in focus groups.”
The Young Adult Court also brings whānau into the process. It would be typical for a lawyer in the Porirua court to say, “I appear for Mr Smith, and he is supported in court here today by his aunty and his mum.”
“As the judge I can acknowledge them, welcome them and let them know that if there is anything they want to add, the court will hear from them,” says Judge Walker. “And sometimes that can be really helpful. Whānau often raise really important and helpful things.”
Judge Walker talks about a young man he was imposing some bail conditions on which included not to drive a motor vehicle. His mother stood up and said, “Can I say something?” And because she had been invited to add something, she felt comfortable doing so. She said, “he’s just got an apprenticeship as a builder, and he needs to drive to get to the worksite.
“If she hadn’t said that the bail condition would have essentially stopped the apprenticeship. So, all that had to be done was to say except for the purposes of driving to and from work,” explains Judge Walker.
“The lawyer didn’t know it, but mum knew. So, bringing whānau into the conversation can be really important.”
Whānau provide support when interventions are put in place and assist the young person to meet their obligations and help make sure things happen.
Porirua District Court was chosen for the Young Adult List Pilot, because as a former resident judge at Porirua, Judge Walker and the team at the District Court had already developed an ethos of community engagement and solution-focused judging, inspired by the Redhook Community Justice Centre in New York and modelled on examples such as the Neighbourhood Justice Centre in Melbourne, where multi-disciplinary teams collaborate for those coming to court.
Porirua District Court has specifically engaged with the community and brought the community and community services into the courtroom. There has been consultation with Mana Whenua, Ngati Toa, and open days have been held, inviting the community into the courts.
“Our Mana Whenua, Ngāti Toa Rangatira were open to working with us,” says Renee.
“We no longer wanted to be the court that stands above and apart from the community. We wanted to work together for better outcomes for our young people and our community.”
As a result of this engagement, door-knocking on service provider doors and the support of community services, the Porirua Court has many wrap-around services.
Representatives from the Social Sector sit in the court. Services like MSD’s Community Link, which provides access to services like health, housing, Inland Revenue, driver licensing, Limited Service Volunteer (LSV) programmes, finding employment, and getting people on the right benefit; and The Howard League for Penal Reform, which provides driver licence assistance.
“The agencies helping with AOD, or trying to find a house for bail conditions, weave and connect together,” says Renee. “Our agencies supporting us in court are really working well together and have evolved into a real team.”
If a defendant pleads guilty to an offence, a plan is created by the court to help the young adult grow and develop and keep them away from reoffending.
The three things that both the defence and prosecution focus on when developing a plan are rehabilitation and training, deterrence and contribution to community, and growth and development. They often see things differently, but by working together and coming to an agreement on the different aspects of the plan, they are achieving the best they can for that person and the community.
Duty Lawyer Supervisor, Louise explains, “If it wasn’t for Karen (the prosecutor) and I having such a good relationship to talk (sometimes argue) things out, I don’t think a lot of the development of the plans would have happened.
“We can go back and forth, but ultimately, we come to an agreement. Sometimes it goes in front of the judge to decide, but then it’s done, and we move on and help the young person succeed with the plan.”
The court connects them with the services and support they need to undertake the activities in the plan. Plans can involve a few required actions and it can potentially be overwhelming.
“We will help the young adult break down the plan,” explains Louise. “A needs to be done before B and C, so we ask them to concentrate on getting A done. And to do A, this is the person you need to work with. Our team supports the person though the whole plan.”
The court continues to monitor progress through to completion of the plan. At that point the young person comes back before the court for disposition, which may or may not include a conviction and a penalty.
In any case, whether they are convicted or not, when a young adult completes the plan, the judge takes the opportunity to congratulate the young person for their achievements. Judge Walker observes “Often it is the first time any achievement by that person has been formally recognised and there is real power in this in changing behaviour”.
Judge Walker says the Young Adult List Court is essentially about procedural fairness, and it is substantive fairness, because of the desire to get to know about the person in order to fashion an appropriate response.
“We don’t knowingly send somebody off on a programme which involves bookwork if they have dyslexia. In the Youth Court and the Young Adult List Court, if there is breaching behaviour, we ask why is that happening?
“This is a much more complicated thing than just knowing what happened and responding to the breach. If we don’t get underneath and work out and try to address the ‘why’, then this will just continue. We will just get more and more breaches and less respect of the process, and more offending on a trajectory that is quite hard to stop.”
Judge Walker encourages lawyers to be sensitive about what might be at play with their clients. He hopes they look more at the person than at the offence.
“Understanding the offence, the section they are charged under, what the summary of facts discloses is the simple bit,” says Judge Walker. “Why did that happen is much more complicated.”
Lawyers need to have a regard to the prevalence of barriers to participation. Judge Walker suggests proceeding on the basis, that it is more likely than not that the person they are representing has a barrier to participation and possibly has a neuro-disability, of some nature.
“For the most part the lawyers can join the multi-disciplinary team in looking for a solution that is in the best interests of their client, which is to deal with the underlying cause of the offending and reduce the risk of them having to come back to court. If the lawyer can see their role through that lens, then they will be comfortable operating in the Young Adult Court.”
Now that the pilot has been running for 18 months and an evaluation is due to be published by the Ministry of Justice, Judge Walker suggests it is time to mainstream this process.
“Everyone should have access to the same accommodation. There is an inherent unfairness to postcode justice, where service is dependent on where the specialist court is. This is where you get this accommodation, assistance, and help, but down the road at the other court you don’t. In a country of 5 million people, we can’t justify uneven approaches like that.
Judge Walker explains that the Young Adult List Court 25-year-old cut off is arbitrary, and he would like to think that eventually the processes in place there will be available to all defendants.
“You can be a 60-year-old with an intellectual disability or brain injury. That is not going to go away just because you get to 25 either.
“In due course, we may be able to develop screening tools that will give us a more accurate picture so we can ascertain which cases we need to be really careful with and understand if a person is likely to have a disability.”
Elements of the Young Adult Court are already being incorporated into Te Ao Mārama which is being trialled in the Hamilton and Gisborne District Courts. At the end of the day, both are seeking the same outcome, to have participants leave the courtroom feeling like they have been seen, heard and understood.
If every defendant can meaningfully participate in the judicial process the hope is the outcomes for them will be far more positive and return visits to court will be, at least, reduced.