USQ Law Society Law Review
Craig K. Bartley
Winter 2021
recurring indiscretions or court involvement.6 The focus is to positively eradicate the legal problem from the offender rather than, negatively, remove the offender from society.7 These outcomes are achieved by veering away from the normal adversarial approach, instead viewing the law as a ‘force that produces behaviours and consequences.’8 There is an obligation on the legal system to promote therapeutic outcomes and to limit detrimental processes.9 Consequently, where mainstream methods are controlling in doling out outcomes to an offender’s actions, therapeutic courts cooperatively facilitate something less like a reprimand and aim more towards bettering the person’s life.10 It is ‘intimately concerned’ with the improvement and operation of the law, seeking to minimise negative effects while promoting positivity towards the wellbeing of those affected by the law.11 The essentially different view on intended outcomes for the offending party found in therapeutic courts is supplemented by equally distinct methods by which the court hears cases. There is far greater interaction between the participants, with the judge enquiring directly of the defendant’s wellbeing while gauging their mindset for implementing life changes,12 clarifying any vagueness in the defendant’s version of events in their own words, and encouraging questions in return should the defendant need to ask anything.13 From this, the judge may garner a greater understanding of what directed outcomes will best work for the offender. Mainstream courts, with their associated language, have led to non-compliance with court directions purely from the offender not having sufficient clarity to understand the obligations imposed upon them.14 Therefore, conversations in therapeutic courts indulge in simple language, ensuring that the court’s instructions are conveyed in a manner that all parties involved are under no illusion as to future commitments.15 However, the development of outcomes is not all one-way traffic, with the defendant and counsel on both sides permitted to contribute suggestions to resolve the matter.16 This involvement demystifies the court process and promotes the defendant’s commitment to fulfilling the outcomes that may be satisfactory to them.17 This ability for self-determination of their own destiny, via outcomes like setting goals for rehabilitation or agreeing to participate in diversion programs, is important to success post court hearing.18 It motivates them to change and provides benefits to their future education, employment and rehabilitation outcomes.19 6
King, ‘What Can Mainstream Courts Learn’ (n 3) 91; Winick, ‘TJ and Problem Solving Courts’ (n 5) 1055. King, ‘New Directions’ (n 1) 131. 8 David Wexler, 'Therapeutic Jurisprudence: An Overview' (2000) 17 TM Cooley Law Review 125, 125. 9 Belinda Carpenter et al, ‘When Coroners Care Too Much: Therapeutic Jurisprudence and Suicide Findings’ (2015) 24 Journal of Judicial Administration 172, 174. 10 King, ‘What Can Mainstream Courts Learn’ (n 3) 92. 11 Michael King et al, Non-Adversarial Justice (Federation Press, 2009) 26. 12 King, ‘New Directions’ (n 1) 131. 13 King, ‘What Can Mainstream Courts Learn’ (n 3) 92; Wexler (n 8) 128. 14 Wexler (n 8) 130. 15 Ibid; see also Diana Eades, ‘Telling and Retelling Your Story in Court: Questions, Assumptions and Intercultural Implications’ (2008) 20(2) Current Issues in Criminal Justice 209, 225 (‘Telling and Retelling’). 16 King, ‘What Can Mainstream Courts Learn’ (n 3) 92. 17 Ibid 93; King, ‘New Directions’ (n 1) 133. 18 King, ‘New Directions’ (n 1) 131. 19 Ibid; King, ‘What Can Mainstream Courts Learn’ (n 3) 93. 7
94
