Table of Contents


Part 1.

Part 2.


Reference List

Introduction to Legal Process, Methods and Institutions

Legal processes, methods and institutions introduces the students who aspire to become a part of judiciary system to the study of law in Australia. This study investigates the adversarial and non-adversarial cases and the application of problem solving methods. In this assignment, there are two parts; Part 1 is dealing with the law of negligence and its element - duty of care. Part 2 is covering the concept of therapeutic jurisprudence, which is a problem solving approach towards comprehensive cases.

Legal Process, Methods and Institutions - Part 1

You are a solicitor. Ms A has come to your law firm for advice after her partner Mr R died as a result of an incident that occurred in police custody at the Doncaster police station. Ms A would like advice about whether she has grounds to sue Victoria Police.

Question: What is the strength of Ms A’s case against Victoria Police? What arguments could Victoria Police make in their defence?

The plaintiff Ms A, wanted to commence proceedings in the court against Victorian Police, as she believed that her partner Mr R was denied Duty of Care by Victorian Police that eventually caused him his life. The case of Mr R states that he was arrested for public drunkenness and for causing havoc in front of Royal Hotel in Essendon. This incident took place on 10pm, Friday, 11 January. Victoria Police under the act of IPCP (Intoxicated Persons - Care and Protection Act 1994) were lawfully correct to arrest Mr R. The act highlights 3 grounds on which Victoria Police can enable themselves for the initiation of arrest of anyone because of intoxication. These grounds are - 1) if someone is behaving in a disorderly way, 2) if someone is behaving in a way that it is causing damage or injury to a property or an individual, 3) If someone is so intoxicated that they became unable to look after themselves or protect themselves from any kind of possible harm around them. Therefore, Mr R covered the two aspects, he was intoxicated and behaving in an unfavourable manner and creating nuisance for the Royal Hotel by his uncontrollable intoxicated behaviour.

After the arrest took place, Mr R, still did not cooperate with police and kept on behaving in an agitated way, which is expected from an intoxicated man who is put into a cell for sobering up. In relevance to Robinett v Victoria Police [1998] VCC 405, Mr Robinett was arrested for the same reason; Mr R was arrested that is disorderly behaviour and public drunkenness. However, in this case, Robinett was detained with the help of capsicum spray that led to physical irritation in his eyes causing him to suffer from bad asthma. However, the medical requests made by him was neglected and Victoria Police pulled off a breach in duty of care. Victoria Police has Guidelines for managing and handling intoxicated people in their custody. This guideline was developed because there is a long history of Australian states and territories criminalising public drunkenness.

 In section 13, of legislation at Victoria highlights the Summary Offences Act 1966 where if someone is drunk in a public place it is taken as offence and shall be reimbursed with the fine of $1,289.52. This fine differs in Queensland and is just $261.10. Therefore, according to the guideline that is supposed to be followed by Victoria police so that the detained person does not go through further problems is that they should check on in them every half an hour. In the case of Mr R, the police followed the activity, they did check up on Mr R, but did not respond to his agitated comments or behaviour as it was expected from him due to his intoxicated condition. When people are arrested and put in custody when intoxicated are disempowered from their ability to command themselves and respect others in the community.

After sometime, approximately 2 hours, Mr R climbed onto a low partition wall, which was located in between toilet bowls, to fling himself out, headfirst. His intoxication lead of an imbalance and as his head was flung out first; it hit the concrete, which resulted in the cause of head injuries and his death in the hospital eventually. Ms A wanted to sue to the Victoria Police, thinking that her partner was neglected and breach of duty was done, otherwise, her intoxicated partner would never reach in a position to fling himself out. The strength of this case is low, as Victoria Police did all of their duties as mentioned in their guidelines that abide to the state law, whereas the circumstances led to the happening of what no one could control. This can be said, as it is relevant to the case of New South Wales v Jones [2005] NSWCA 47, per Brown J, where Ms Jones, jumped out of the window while an officer was interviewing her about her detainment. The action of hers that is, jumping out of a window rather than running out of a doorway was unpredictable for any constable in that room. Therefore, the case of Mr R highlights something like this as well, it was not foreseeable by any police officer present in Doncaster Police station on that day, to predict about Mr R’s attempt to fling himself out of the precinct’s washroom’s low partitioned wall and hit is head on the concrete ground.

Ms A wanted to sue the Victoria Police, as she believed that they breached the duty of care while detaining her partner in the jail. In relevance to the case of Jarvis v Victoria Police (2008) 85 CLR 175, the judgement was passed against the Victoria Police, as it was concluded that they failed to maintain the standards for reasonable care. Ms A, thought that it was due to the lack of proper monitoring her partner could manage to climb up a low partition wall in an intoxicated condition. The Jarvis case displays that the detained person, suffered from injuries that led to his death, which was caused to him by his vulnerability in an intoxicated condition. It is similar to the situation of Mr R as he was intoxicated too, but he was certainly not as vulnerable as mentioned in the Jarvis case. His action was unpredictable as similar to the Jones case, instead, where nobody could predict the accused will attempt to jump out of a window. 

However, this was not the scenario; the police has immunity from suit because the breach of duty did not take place. The duty of care that is owed by the police towards the public is an element of the law of negligence. Negligence occurs when an individual has failed to take reasonable care to prevent causing damage to another person. This is applicable to public institutions like police authority, businesses and individuals in the community. In the given case scenario, Ms A would have to satisfy several factors to successfully, convict the Victoria Police in the eyes of the court. These factors are - Duty of Care, Breach of Duty, Causation; and Damage. The Victoria Police was obliged to provide duty of care to Mr R, under the IPCP Act and the authority it has over the detainees. Here, the party with greater control is Victoria Police, therefore, why Ms A, want to sue them for her partner’s demise. Under the Civil Liability Act 2002, the police is empowered to provide care to the drunkard detainee as any reasonable person would provide to lower the threshold of possible harms to him or her. In the case of Mr R, the standard or care was provided, hence the Victoria Police has upper hand in this aspect. The standard of care was maintained and breach of duty did not take place. This particular point can be used in the defence of Victoria Police, as it does not satisfy the first two elements of the law of negligence to be applicable.

Damages and causation the last two factors on which Victoria Police could be sued if their actions caused any harm to Mr R. However, Ms A can put forward this point that her partner was not taken seriously when he claimed that he was feeling fidgety and said, “being in here is killing me”. She can point out that the police did not respond to that and did not take any action to provide care, which lead him to his relentless attempt of flinging himself from the partition of wall in the toilet. However, Victoria Police can defend themselves by relating it to the case of the Jones, where the action of the detainee was unforeseeable, and it is similar to that of Mr R’s case. Police officers tend to get agitated behaviour from intoxicated people; therefore, they did not assume Mr R’s behaviour to be any different. The police were waiting for him to sober up, that is why they did not give importance to his agitated behaviour, as no normal person would feel comfortable in a cell. Therefore, the grounds of damages and causation becomes invalid as it was not police’s action that caused Mr R, any harm, it was his own intoxicated vulnerability and lack of making informed decision that lead to the fatality of his own death. The law of negligence in this case is not applicable as it was not the police’s action that caused suffering and injury of Mr R, otherwise Ms A, would have had a strong case to sue the Victoria Police under the law of negligence. However, she was not able to satisfy the elements of this law against the defendant.

It can be concluded that, Ms A do not have a strong case to file a lawsuit against the Victoria Police as no duty of care was breached.

Legal Process, Methods and Institutions - Part 2

Therapeutic Jurisprudence

(c) What role does therapeutic jurisprudence play in the Australian Legal System? Refer to examples in answering this question.

Therapeutic Jurisprudence is recognised as interdisciplinary method to provide legal scholarship that revolves around the concept and goals of reforming the psychological wellbeing of the accused person. David Wexler and Bruce Winick coined this term in 1990 in order to acknowledge the socio-psychological results of any legal action influencing the defendant[1]. This idea came into action form 2000, when the Australian and New Zealand Association for Psychiatry, Psychology and the Law held annual conference in New Zealand itself. The theme of this annual conference was Therapeutic Jurisprudence. It gets meaning from the interpretation of legal procedures and rules, it highlights the fact that law can act as therapeutic agent for the betterment of society as a whole. This allows the court personnel’s like judges, barristers, lawyers, solicitors to take a non-adversarial approach when dealing with law and legal procedures of justice administration.

This concept enables the key stakeholders of any court proceedings to make a collaborative effort in planning strategy that will help the offender to take responsibility of his actions and abide to the law’s punishment as a time for self-reformation. It is well understood that the legal proceedings in the court impacts the wellbeing of any related individual, for example, the judge allows an adjournment time for the witness, if he or she has gone through a tough time, performing that role. It is also noticed when a lawyer is settling the case because the client is unable to bear the stress of lawsuit. Until now there has been no method to overcome this issue, therefore this gap if for now is bridged by therapeutic jurisprudence. This concept allows the offender to rehabilitate himself or herself and strive to become better versions and contribute back to the community in a positive way.

The influence of this concept has widened the judicial and correctional system practices in Australia vividly; it is applied in drug courts, domestic violence courts, Koori Courts and mental health courts[2]. It is understood by highlighting and focusing on the key characteristics of problem-oriented courts and theory of Therapeutic Jurisprudence. This concept has the essence of restorative justice and shares the significance of the factors like - emotional intelligence, trust, fairness of legal procedures, and relational interaction that is applied in broader context. The result of this application is that it provides the jurisdiction with constructive substitution for the flawed adversarial dynamic of the criminal justice system currently prevailing ion the Australian Community.

Therapeutic Jurisprudence enables the law system to show empathy towards the human survivors of the conflicts that are managed in the court. Many people feel emotions like, loss, pain, grief, revenge and anger due to the complex legal encounters they go through in the court, therefore, the justice system shall try to grasp this gap with a holistic approach towards addressing them. Restorative Justice is an extended version of this concept, the former is an approach and the latter is the result of that approach [3]. This is also identified as a comprehensive law trend in the community. Therapeutic Jurisprudence helps the legal system to enhance the process of adversarial and non-adversarial processes widely, but the latter is always recognised as a comprehensive matter of subject.

This concept states that the harmful event that has occurred due to the action of the offender, might be due to his or her emotional dispute or issues. That is why reformation is in the question so that retabulated offenders can go back to living their normal lives after completing their time. Prison should be a place for self-discovery through rehabilitation. The term therapeutic means to provide supporting behaviour. If criminals are rehabilitated, there is one less criminal in the society like that, which can be a revolutionary achievement by the governing public institutions.

Law affects the social and economic conditions of the families or individuals therefore, therapeutic jurisprudence loos after the wellbeing of them, helping them in ways it is allowed to help under the framework of legal processes. James Cooper recognised the impact therapeutic jurisprudence could have for the self-determination of human rights in international law[4]. Therapeutic jurisprudence has been applied in spaces such as school protection, family commandment, permissible practice in criminal cases, lawful practice in trial generally, civil law, plea courts, employees’ compensation, corrective processes, and problem-solving adjudicating and legal practice. This concept definitely does not state that the legal system’s first priority shall be the promotion of human wellbeing, as it is an institution to provide justice for those who has been done wrong by others. However, it focuses on the part that like health care industry, like medicine it should not inflict any harm, or at least try to inflict less harm to plaintiff, defendant and any offender as well. The approach should be to correct the wrong behaviour not punish the criminal brutally under the name of promoting justice.

The concept of Therapeutic Jurisprudence is a psychologically optimal way to handle legal procedures. It is practiced in specialised courts like - problem solving ones, which includes drug treatment and help people who suffered from the trauma of domestic violence. Here the problems of the individuals are solved with the application of key principles derived from this concept. In Australia the first drug court emerged in 1988, New South Wales[5]. This emerged because of the political pressure inflicted on government by the barrister Ross Goodridge of Sydney. He did this because he believed that the Australian legal system needed a reform in managing their drug crime cases. Queensland is the second state in Australia to establish another drug court. This lead to the emergence of domestic violence court ten years later, 1998, followed by a mental impairment court in 1999, at Port Adelaide. These courts are not independent but dependent on the magistrate court; they just distribute the cases among themselves according to their specialisation. It was by 2000 that Victoria was considering introducing a drug court as the baggage brought upon the community from the flawed criminal justice systems was immense.

Another example of practicing therapeutic jurisprudence would be the engagement with Aboriginal people of South Australia where it is recognised with the name of Nunga Courts [6]. The magistrate Chris Vass and other senior judicial officers recognised that the public institutions and governing authorities have been alienating the rights of Aboriginal people in Summary courts. They wanted to reduce this gap with the theme of therapeutic fashion. This type of court was established so that the offending rate of Aboriginal people follows the declination path. Studies show that prisoners who get out of the prison are likely to end up their again, due to the fatal treatment done with them. This is why the concept of therapeutic jurisprudence took birth in the first place.

One more example of this is seen in Victoria State, the emergence of Koori Court is working on a similar method to diminish the rates of aboriginal people ending up in prison[7]. An Aboriginal Liaison Officer was hired to train the Aboriginal bail justices to be run in Koori court. This court also hires elders from Aboriginal people to assist the judge in making an informed decision. It is understood that adopting the practice of therapeutic jurisprudence does not mean that the court personals will function as therapist or social workers. In fact, it requires the key participants of court hearings to identify the legal aspects and try to find solution based on that which provides justice to everyone.

Over the years, numbers of criticisms were faced by this concept and it was well summarised by the Australian barrister Ian Freckelton. Scholars say that the concept of therapeutic jurisprudence is not solid enough to provide a distinctive approach to manage the non-adversarial cases. It is problematic and unclear about its objective and it generates ambiguousness when applied. It tries to balance those values that are in constant conflict with each other, which makes the court lose time when it comes to take an informed decision.

However, focus on Therapeutic Jurisprudence will allow the Australian Legal system to widen its scope of handling the matters of adversarial and comprehensive cases.

Conclusion on Legal Process, Methods and Institutions

It can be concluded that in Part one, the Victoria Police was immune from the suit placed by Ms A for the fatal death of Mr, due to intoxication vulnerability. However, in part two, the significance thrown on the Therapeutic Jurisprudence is essential to reform the criminal justice e system in Australia. It highlighted the dire need of approaching the adversarial and non-adversarial cases with a holistic approach.

Reference List for Legal Process, Methods and Institutions

Brooks, Susan L., "Re-Imagining The Transformative Potential Of Therapeutic Jurisprudence And Restorative Justice Using A Relational Paradigm" (2019) 2(3) The International Journal of Restorative Justice

Cooper, James M., “22. Therapeutic Jurisprudence and the Rights of Self-Determination.” (2017) Revival: Human Rights in Philosophy and Practice (2001)

Gavin, Paul and Anna Kawałek, "Viewing The Dublin Drug Treatment Court Through The Lens Of Therapeutic Jurisprudence" (2020) 11(1) International Journal for Court Administration

Marchetti, Elena., “Indigenous Sentencing Courts in Two Australian States.” (2019) In Indigenous Courts, Culture and Partner Violence

Marchetti, Elena.,“Indigenous Courts, Culture and Partner Violence.” (2019) London: Palgrave Macmillan

Spivakovsky, Claire., & Seear, Kate., “Making the abject: Problem-solving courts, addiction, mental illness and impairment. Continuum” (2017) 31(3)

Wemmers, Jo-Anne, "From Restorative To Transformative Justice: The Relevance Of Therapeutic Jurisprudence For Restorative Justice" (2019) 2(3) The International Journal of Restorative Justice

[1] Jo-Anne Wemmers, "From Restorative To Transformative Justice: The Relevance Of Therapeutic Jurisprudence For Restorative Justice" (2019) 2(3) The International Journal of Restorative Justice.

[2] Paul Gavin and Anna Kawałek, "Viewing The Dublin Drug Treatment Court Through The Lens Of Therapeutic Jurisprudence" (2020) 11(1) International Journal for Court Administration.

[3] Susan L. Brooks, "Re-Imagining The Transformative Potential Of Therapeutic Jurisprudence And Restorative Justice Using A Relational Paradigm" (2019) 2(3) The International Journal of Restorative Justice.

[4] Cooper, J. M., “22. Therapeutic Jurisprudence and the Rights of Self-Determination.” (2017) Revival : Human Rights in Philosophy and Practice (2001).

[5] Spivakovsky, C., & Seear, K., “Making the abject: Problem-solving courts, addiction, mental illness and impairment. Continuum” (2017) 31(3).

[6] Marchetti, E., “Indigenous Sentencing Courts in Two Australian States.” (2019) In Indigenous Courts, Culture and Partner Violence

[7] Marchetti, E.,“Indigenous Courts, Culture and Partner Violence.” (2019) London: Palgrave Macmillan

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