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A Day at the Koori Court, Where Jail Is a Last Resort

This division of the Victorian Magistrates' Court is curbing recidivism by allowing Indigenous defendants an informal conversation with community elders and judges.

Livia Albeck-Ripka

Illustration by Ben Thomson

Last week, in a division of the Magistrates' Court of Victoria, Deputy Chief Magistrate Jelena Popovic leaned over the table to shake hands on a deal with a defendant: neither of them were going to drink until the next hearing.

"I'm about to make a pledge," she said. "A really serious pledge that I don't want to make. "I'm going see you again on May 30," she sighed, "and I'm about to pledge, that I won't have a drink until that day. If you promise me you won't have a drink till then either. Weddings, engagements... I won't have a glass of white wine in that time. I'm prepared to give it up for you."

Roger bowed his head, "Yes your honour." Then the magistrate and defendant leaned across the table and shook hands. "It's on the tape," said Popovic. "And there are a few witnesses."

This wasn't a sentence, but a sort of informal agreement that's unique to the Koori Court. A few variations of this system exist around the country, all as a way for elders, court officers, prosecutors, lawyers, and Indigenous defendants to have an open discussion before any decision are made on sentencing.

"The law is the same but we all get a chance to speak," explained Popovic of the system, which hears only five to eight cases each day and treats imprisonment as the last resort. By comparison the neighbouring courts will hear 80 or so cases on any given day. However, to go to Koori Court an Aboriginal person must have plead guilty.

Indigenous people make up 27 percent of inmates in Australia, but only three percent of the nation's population according to the 2016 Closing the Gap report.

Inside the court—which is decorated with traditional paintings and a display of ashes from their opening ceremony—the role of elders is to help defendants to address the cause of their behaviour, and ensure sentences are culturally appropriate. Proceedings open with thanks to the Aboriginal people present, including the offenders, who are given an opportunity to introduce themselves and their mob's history.

Uncle Glenn James describes the proceedings as an opportunity for Aboriginal people to reconnect with their cultural heritage and community. "I tell them, 'I want to see you around, but I don't want to see you here,'" he says. During the hearings, he and another elder named Aunty Pat Ockwell offer suggestions to defendants about rehabilitation programs, work opportunities, and social activities that could divert them from criminality.

"It's not an adversarial process," explains Magistrate Ann Collins, who also regularly presides over the Court. "Normally people are up in a witness box when they are giving evidence. That's so alienating from the way [Aboriginal people] tell a story—question, answer, question, answer—so the act was changed." She describes the system as "therapeutic jurisprudence"; a sweet spot in the cycle where an offender can be caught and hopefully rehabilitated within a legal framework.

Established under the Children, Youth and Families Act, the Koori Court has open since 2005 and is based on a model pioneered in Shepparton back in 2002. While the court currently has the capacity to deal with everything excluding domestic violence and sexual assault, Popovic says she hopes its jurisdiction is expanded in the future as "the elders have a lot to offer in terms of cultural imperative."

Tellingly, defendants seem as positive about the Koori system as those in charge. "Last time I was here it was traumatic, but it actually opened up the door to what happened now," says another defendant, Alicia, whose case was being heard the same day as Roger's. "After I left here and had a bit of a cry, I realised I really need to get some stuff sorted. I thought, my god, I stuffed up my life, I'm going be a statistic in the system."

Alicia goes onto explain how she's now getting into tai chi, hydrotherapy spas, and "cooking kangaroo with roasted beetroot sauce."

According to Magistrate Ann Collins, "If you could spend time with every offender that came before the court and look at the reasons for them offending, you will actually save the community a lot of money by them not ending up in jail.

"The way [Aboriginal people] are over-represented in the system is as a direct result of what we've done: their dispossession, the destruction of their culture, their loss of connection. So we've got a duty, I think, to remedy that."

Today, Thursday March 17, is Close the Gap Day.

Last names in this article have been omitted to protect privacy.

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