Community Court

The Community Court is the name given to “indigenous court” proceedings conducted in the Magistrates Court of the Northern Territory, a territory of Australia. The court is not an actual court, but is the commonly referred designation of the Court of Summary Jurisdiction of the Northern Territory when dealing with indigenous offenders accused of crime. This is to show its distinction from the usual procedures involved in that criminal court. The court commenced as a twelve month trial in Darwin and still continues today [ [http://aic.gov.au/conferences/2005-abs/yick.pdf Recidivism in the Northern Territory : adult prisoners released in 2001-02 ] ] . At present, the court only sits in Darwin. However, there is no barrier to the court sitting outside Darwin if the court determines that it is necessary to do so.

The court allows the involvement of the Australian Aboriginal and Torres Strait Islander communities in the sentencing process. It allows senior members of the local community to be involved in and express their views upon the particular and to be part of the sentencing process. The Court is conducted in a fairly informal manner and is conducted with a view to enhance the reaching of an agreement between the involved parties as to the most appropriate sentence to impose. The court is innovative in that it incorporates the victim of the actual crime into the restorative process [NT Magistrates Court website] .

Jurisdiction

The establishment of the court differs from other indigenous courts established around Australia. In Victoria and Queensland, each of those States have established separate and distinct courts to deal with indigenous offenders. Those courts are the Koori Court and the Murri Court respectively. The Community Court is not established as a court in its own right. The court is actually the Court of Summary Jurisdiction, which is the Territory’s main criminal court dealing with summary criminal matters. Summary criminal matters are generally less serious criminal matters, as serious crime is dealt with the Supreme Court of the Northern Territory.

The court also differs in that it operates under guidelines established by the Chief Magistrate of the Northern Territory. Those guidelines are available on the Magistrates Court website. In other States, similar courts operate under special legislation. In New South Wales, this is the “circle sentencing” legislation which is heard by the Local Court of New South Wales. However, in practice, these distinctions make little difference to the manner in which each of the courts operate.

Participation in “indigenous courts” is voluntary, and offenders are eligible to participate only if they plead guilty to the offence or offences for which they have been charged. Participation in the program is available for any type of offence, although sexual assaults and domestic violence offences are usually not dealt with by the court. While participants in the court are involved in determining the appropriate sentence to be imposed upon an offender, the magistrate has the final say on the sentence imposed. In an Australian Law Reform Commission report, it was reported that participants in these types of court report higher levels of satisfaction with the system than the usual British based legal proceedings [ “Same Crime, Same Time: Sentencing of Federal Offenders”, ALRC Report 103, http://www.austlii.edu.au/au/other/alrc/publications/reports/103/index.html] .

Constitution of the court

As the court is actually a Court of Summary Jurisdiction, the court is constituted by a magistrate. The magistrate presides, facilitates, and ultimately determines the appropriate sentence for the offender. The magistrate is assisted by at least one community representative. The community representative provides the court with information on the background of the offender, as well as being able to point out the aspects of the offence as they relate to the offender, the impacts they have on the community and the effect it has had on the victim of the crime.

The prosecutor continues to present the facts of the case and makes submissions as necessary on the crime. The offender participates in the process by agreeing to adhere to the community process involved. Lastly, the victim is encouraged to be part of the process and to outline the impact of the crime upon them. However, it is not compulsory for the victim to be involved if they do not wish to.

Procedure

The court begins with the participants arranged in a circle in the venue. The presiding magistrate opens the court and explains the process of the court and the role of the various participants in the proceedings. Each participant introduces themselves, explaining who they, and their relationship to the offender. The court clerk reads the charge and the offender reaffirms their earlier guilty plea to the community. The prosecutor reads out the “fact” of the crime. This is a narrative of the events that constitute the crime. This narrative has been agreed to before court as being accurate and a fair representation of what actually occurred. Each participant is then given an opportunity to speak about the offence. At the end of this, there may be a general discussion of the impact of the offence.At the conclusion of this, the offender and the prosecutor make formal submissions to the court about the sentence. The community representatives then have an opportunity to make comments on those submissions. Lastly, the presiding magistrate determines the appropriate sentence to impose.

Appeals

As the proceedings are actually a case in the Court of Summary Jurisdiction, all the usual appeal processes that apply in that court continue to apply.

Canada

A community court was established in Canada, in September 2008, the first of its kind, to deal with the troubled Downtown Eastside. Its purpose is to enact restorative justice to solve the problems of the community. However, Laura Track, a lawyer and housing campaigner for Vancouver's Pivot Society, says there's legal log jam ahead unless the government invests millions more in housing and treatment programs. This new court will be presided over by Justice Thomas Gove. [cite news|url=http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20080906/BC_community_court_080906/20080906?hub=TopStories|title=Community court first of its kind in Canada|publicher=CTV News|accessdate=2008-09-06]

ources

* Marchetti and Daly (2004), ‘Indigenous courts and justice practices in Australia’, Trends & Issues in Crime and Criminal Justice No. 277.
* YOUTH JUSTICE CONFERENCING AND RE-OFFENDING, Hennessey Hayes & Kathleen Daly, School of Criminology and Criminal Justice, Griffith University, Brisbane, Queensland http://www.griffith.edu.au/school/ccj/kdaly_docs/daly_pt2_paper_3b.pdf and http://www.griffith.edu.au/school/ccj/kdaly_docs/kdaly_paper_17.rtf
* Crime Prevention and Socio-Legal Reform on Aboriginal Communities in Queensland by Barbara Miller, Aboriginal Law Bulletin, [1991] AboriginalLB 18, http://www.austlii.edu.au/au/journals/AboriginalLB/1991/18.html
* Recidivism in the Northern Territory: Adult Prisoners Released in 2001-02, Joe Yick & Peter Warner http://aic.gov.au/conferences/2005-abs/yick.pdf
* Chief Magistrate’s Guidelines on Community Courts, 27 May 2005.

References