Adopting a trauma-informed approach in the District Court of NSW[1]

His Honour Judge W Hunt[2]

His Honour Judge Warwick Hunt observes that a trauma-informed approach in a criminal trial must take into consideration the overriding need to ensure a fair trial for the accused.

Judge Peggy Hora outlines her views on the needs of court users affected by trauma and proposes some anecdotal techniques for modifying judicial practice to meet the sensitivities of such persons. Such adjustments are expressed as being a part of a “trauma informed courtroom”. Judge Hora acknowledges the limitations of such practices under relevant regulatory restraints in particular States within the American judicial system.

This article aims to comment on the desirability of such adjustments within the judicial context of NSW. It is uncontroversial to most, if not all, judicial officers, that many people interacting with our courts are affected by trauma, whether experienced in childhood or more recently, or both (putting to one side for current purposes, practitioners and judicial officers). Without limitation, classes of such persons which come readily to mind include victims and complainants of sexual and violent offending, parents and children involved in the care and protection regime and those who otherwise suffered intensely dysfunctional upbringings. It is important to have in mind that accused persons, offenders and other defendants will often have conditions invoked by past and present trauma. Often in criminal trial proceedings, putting fitness issues to one side, the judicial officer will either never know about the offender’s past trauma or only learn of such matters at the sentence stage, if relevant.

Various models exist in our system within which the “trauma informed” approach might be more easily met than in traditional court settings. Circle sentencing in some Local Courts, the Drug Court of NSW and the new Youth Koori Court all come to mind. Another initiative which seeks to address potential further trauma to juvenile complainants is the metropolitan trial in the District Court concerning the early pre-recording of evidence with the assistance of a witness intermediary.[3]

It is to be accepted that judicial officers can require advocates to have in mind the vulnerabilities of particular witnesses, including those brought about by past trauma or the trauma of the proceedings themselves. In my experience, many judicial officers intuitively amend their own communication style to make the courtroom experience less confronting and more explicable to such court users. It is worth observing that sometimes the advocates themselves might have undisclosed vulnerabilities, due to psychological issues, grief or the strain of continually litigating particular types of cases; criminal cases involving allegations of child sexual assault and child pornography are relevant examples.

Adjusting processes to meet the needs of the vulnerable is important, as is maintaining balance. It must be kept firmly in mind that most legal cases involve adversarial processes and sometimes alteration of process to meet the needs of a vulnerable witness will unfairly impact on the rights of a party to fairly and fully test the evidence. I suggest that if processes need to be altered to meet the need of a particular witness, issues of competence and capacity need careful consideration.

It is well understood that giving evidence about alleged sexual misbehaviour can of itself be re-traumatising. Requiring a proper level of delicacy and restraint by advocates is important in a case where such allegations are central. In a slightly different context, it often emerges in evidence on sentence that an offender reports a history of being sexually abused. In this circumstance, when an offender elects to give evidence about such events, I often ask the lawyers whether objection will be taken to my first asking questions on that issue. If the offender has provided details of the alleged abuse to an assessing professional, I often take the view that the offender does not need to be robustly examined or cross-examined on the intimate details, at the risk of further trauma. My experience, borne by working in the area of historical child sexual abuse in a variety of capacities, is that there is a way to test the veracity of such claims by offenders by exploring peripheral detail with an eye to the emotional resonance of the witness with the details explored. In this way, I consider a trauma-informed approach can fit within the fairness dictated.

Judge Hora’s article seems to suggest some modifications to language and process that trespass on the formality of processes mandated to ensure fairness. For those who are interested, a nuanced consideration of the countervailing issues in this area can be found in a recently published article by Rhondda Waterworth.[4]

[1] Published in (2020) 32(3) JOB 14.

[2] District Court of NSW

[3] The Child Sexual Offence Evidence Program Scheme commenced on 31 March 2016 in the Sydney District Court. The Scheme has been extended to 30 June 2022.

[4] R Waterworth, “Measuring legal actor contributions in court: judge’s roles, therapeutic alliance and therapeutic change” (2019) 28 JJA 207.