Sweeney, Deborah --- "Court Communications" [2000] ALRCRefJl 23; (2000) 77 Australian Law Reform Commission Reform Journal 16

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Reform Issue 77 Spring 2000

This article appeared on pages 16 - 18 of the original journal.

Court communications

In this article, Deborah Sweeney* expresses her views about effective communication in the courtroom, in the Local Court.

The Local Court, in which I, as a magistrate, hear and decide cases, deals with more than 90 per cent of the cases before courts in New South Wales. Most people who go to court in New South Wales will have their first, or only, experience of a court in the Local Court. The Local Court deals with approximately one quarter of a million cases each year.

The work of the court covers a broad range of matters including criminal prosecutions of adults and children (children’s matters being heard in the Children’s Court); civil claims up to $40,000 (generally claims for money for loss or damage caused by another person); apprehended violence orders; family law applications; industrial matters (including prosecutions for breaches of work safety laws); and mental health inquiries, to decide if people should be kept in hospitals involuntarily for psychiatric treatment.

Criminal prosecutions, where a prosecuting authority such as the police or the Director of Public Prosecutions (DPP) brings a charge against a person, range from breaches of traffic laws to sexual and other assaults, breaking and entering, fraud, stealing or other dishonesty offences, and supplying drugs. Wherever the offence charged stands in the range of seriousness of criminal offences, it is serious and important to the person who comes to court to either defend the charge or plead guilty and ask the court to take matters into account when sentencing. The same applies to people bringing civil cases or seeking family law orders.

The people who come to the Local Court to have their cases heard represent a broad range of the community, including corporations and businesses, both large and small, well educated professionals, children from the age of 10-years-old, people who are long-term unemployed, people who are not highly educated, people from disadvantaged parts of society, people who have an intellectual disability, people who have little or no understanding of the English language, and people with limited literacy skills. Some people are legally represented; many are not, and appear in person to present their cases. In the year July 1998 to June 1999 just under 55 per cent of persons charged with criminal offences were legally represented.¹ Unrepresented persons tend to appear in lower numbers in civil than in criminal cases.

To me, it is fundamentally important that people who come to court are able to participate in their hearing, in the sense of fully understanding what happens during the hearing as well as the court’s decision and reasoning.

Courtrooms are formal places, both in their physical layout and their atmosphere. They will be unfamiliar to people who do not work or appear in courts regularly. Many people who come to court, whether or not they are represented by a lawyer, will probably find the courtroom intimidating because of this unfamiliarity. Several studies have reported such reactions.² Many people who come into court do not know where they should sit or stand, what will happen, when they should speak or what they should say. The daunting nature of the courtroom and the experience of being in court may affect people’s ability to understand what is said to them or to express themselves.

People coming to court will usually not be familiar with court procedures, which are familiar to lawyers and people who work in courts. Familiarity with court procedures by people who are often in court means that some things may happen fairly quickly; but people who are not familiar with the procedures may not understand what is happening. Difficulties in understanding court procedures may be increased if people do not speak English or have a mental disability.

It is therefore important, in my view, particularly when people appear unrepresented, that procedures, decisions, reasons for decisions and orders be explained simply and directly, rather than in formal legal language or jargon. Court documents, judgments and laws contain a lot of legal jargon. Lawyers understand the jargon, and are used to communicating with each other in this way. Legal terms and jargon have a meaning, but some legal terms and words are old and no longer meaningful, or can be expressed or explained more simply, without losing the meaning. The former Chief Justice, Sir Anthony Mason, made the following comments to the New South Wales Supreme Court Conference in 1993:

‘Unfortunately, judgments do not speak in a language or style that people readily understand ... The lesson to be learned is that, if we want people to understand what we are doing, then we should write in a way that makes it possible to do so.’

It can be a challenge to explain legal concepts and rules or decisions in simple, non-legal language, but it can be done. It can also be a challenge when one party in a case is legally represented, and the other party is not, to explain a decision in a way which is understood by the non-lawyer, and so uses simple language, and yet tells the lawyer that I have understood the issues in the case, applied the correct law and observed all the appropriate legal rules and principles. This requires careful thought and expression.

In Gidaro v Secretary, Department of Social Security,³ Justice Burchett, in the Federal Court, considering an unrepresented appellant who was unable to formulate the legal issues in the appeal, said:

‘Cases brought by litigants in person are very likely to involve difficulties of identification and definition of the legal question raised by a dispute. Such a litigant may find it impossible to reduce the dispute to the concepts and language of the law. But, because the system of pleading is designed, in skilled hands, to refine the issues to be decided by a court in a particular case, it does not follow that a litigant who is incapable of applying that system must be denied a hearing. A court, in a case of that kind, will endeavour, as best it can, to ascertain the issues which really arise between the parties. Of course, in doing so, the court must be vigilant to ensure that showing fairness to the unrepresented litigant does not degenerate into favouring that litigant. But the dominant principle is that the court’s duty is to decide the dispute brought before it in accordance with the justice of the case. If possible, the matter should not be decided otherwise because of deficiencies in the formulation of a claim by a technically unskilled litigant. ‘It ought always to be borne in mind’, Dawson, Gaudron and McHugh JJ said in Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 154, ‘... that the ultimate aim of a court is the attainment of justice’.’

In the past couple of years I spent some time working in courts in some small towns in country New South Wales. The people who came to court were mostly Aborigines. A lot of them were charged with alcohol related offences or domestic violence. The behaviour that led to those kind of offences reflected a lot about the social and economic circumstances and the history of the people in those towns. Many people coming to court were unemployed and had been for a long time, and had low levels of education and literacy. A lot of them admitted to a problem with alcohol; some had suffered brain damage from alcohol abuse. There were also children coming to court who were already abusing alcohol or other substances, some as young as 12-years-old.

Working in those courts made me even more aware of the importance of speaking to people in a very plain and simple way, particularly when explaining their sentences and the reasons for them, or explaining their conditions of bail, a good behaviour bond or parole or an apprehended violence order, breach of which could lead to serious consequences including arrest, charges, or time in custody.

The need to speak simply or plainly does not only apply to Aboriginal people in country towns. In courts in Sydney I see people who speak English as a second language or not at all, people who have mental illnesses or disabilities which affect their ability to understand or concentrate in court, people who come to court affected by alcohol or drugs so that they are not in their best condition to understand or participate, or people who are very emotional about their cases.

I believe that it is important that people respect the court’s authority and decisions, and to achieve that there is a need for some formality in the court environment and processes, but that can be tempered with some informality in speaking to people so that they understand what is happening to them and why. It is an essential element in providing access to justice.

*Deborah Sweeney is a New South Wales Magistrate. She is also a member of Reform’s Editorial Advisory Committee.

Endnotes

1. NSW Bureau of Crime Statistics and Research Key Trends in Crime and Justice Sydney 1999.

2. See, for example, S Parker Courts and the Public AIJA Melbourne 1998.

3. (1998) 83 FCR 139, 146.