The construction of ‘therapeutic’ in the Alcohol and Other Drug Courts of New Zealand

K Thom1* & S Black1

University of Auckland

*corresponding author: k.thom@auckland.ac.nz

This paper will explore the construction of ‘therapeutic’ in the Alcohol and Other Drug Court pilots of Aotearoa New Zealand. Drawing on qualitative research that included courtroom observation, interviews with the court team professionals, and document analysis, the presentation will explore the four strands – Law, Lore, Recovery and Drug Court Best Practice – that we argue are woven together to produce a therapeutic philosophy of the AODTC. Understanding the ‘therapeutic’ as a practical accomplishment in the AODTC, we will illustrate the weaving of these strands with examples grounded in the everyday reality of professionals as they interact within the courtroom. We will then consider how the therapeutic philosophy adopted in AODTCs can be understood within the context of international conceptualisations of therapeutic jurisprudence, as well as the ways in which the AODTCs may be developing organically to reflect the unique cultural, legal, and clinical practices of Aotearoa. The presentation will conclude by considering some of the challenges faced by the professional team that have the potential to disrupt the production of the ‘therapeutic’ in the AODTC.

Evidence of intoxication in Australian criminal courts: A complex variable with multiple effects

L. McNamara

Faculty of Law, University of New South Wales, luke.mcnamara@unsw.edu.au

This paper considers how the effects of alcohol and other drugs are treated by criminal courts in Australia. It analyses appellate court decisions from all Australian jurisdictions and identifies the multiple points at which legal significance is attached to evidence that the accused, the victim or a witness was ‘intoxicated’ at the time of the alleged commission of a criminal offence. Focusing on the rules and principles endorsed by appellate courts in relation to four key ‘sites’ of criminal justice decision-making – the admissibility of police interviews, the credibility and reliability of witness testimony, adjudication on the criminal responsibility of the accused, and determination of sentence for convicted offenders – it shows that the impact of intoxication on the enforcement of the criminal law is complex. There is no single characterisation that can account for the multiple points at which intoxication may need to be assessed, and the divergent ways in which it can impact on adjudication. Depending on a range of site-specific and case-specific considerations, intoxication evidence may expand/contract the parameters of criminal responsibility, and it may yield higher or lower criminal penalties.

Biography

Dr Luke McNamara is a Professor in the Faculty of Law at the University of New South Wales. His current research examines the patterns, drivers, modalities and effects of criminalisation as a public policy and regulatory mechanism, and the criminal law’s treatment of intoxication.

Evidence of intoxication in Australian criminal courts: A complex variable with multiple effects

L. McNamara

Faculty of Law, University of New South Wales, luke.mcnamara@unsw.edu.au

This paper considers how the effects of alcohol and other drugs are treated by criminal courts in Australia. It analyses appellate court decisions from all Australian jurisdictions and identifies the multiple points at which legal significance is attached to evidence that the accused, the victim or a witness was ‘intoxicated’ at the time of the alleged commission of a criminal offence. Focusing on the rules and principles endorsed by appellate courts in relation to four key ‘sites’ of criminal justice decision-making – the admissibility of police interviews, the credibility and reliability of witness testimony, adjudication on the criminal responsibility of the accused, and determination of sentence for convicted offenders – it shows that the impact of intoxication on the enforcement of the criminal law is complex. There is no single characterisation that can account for the multiple points at which intoxication may need to be assessed, and the divergent ways in which it can impact on adjudication. Depending on a range of site-specific and case-specific considerations, intoxication evidence may expand/contract the parameters of criminal responsibility, and it may yield higher or lower criminal penalties.

Biography

Dr Luke McNamara is a Professor in the Faculty of Law at the University of New South Wales. His current research examines the patterns, drivers, modalities and effects of criminalisation as a public policy and regulatory mechanism, and the criminal law’s treatment of intoxication.

Zero tolerance and drug driving laws

J. Quilter

School of Law, University of Wollongong, jquilter@uow.edu.au

All Australian States and Territories have drug-driving laws which make provision for driving under the influence of alcohol or any other drug as well as to ‘randomly’ test for the presence of ‘prescribed illicit drugs’. While ‘random’ drug road-side testing is equivalent to random breath testing (RBT), unlike RBT which tests for all forms of alcohol and demarcates whether an offence has been committed on the basis of prescribed concentrations of alcohol, drug-road side testing is for mere presence of an illicit drug and usually only for three illicit drugs: cannabis, methamphetamine and ecstasy. Fines and certain periods of license disqualification result from these offences. This paper considers whether there is an evidence-based rationale for the zero-tolerance approach reflected in such laws. This paper also considers the challenges posed for courts in determining guilt and for sentencing in drug driving cases. In a context where state governments and police forces have made major commitments to addressing drug-impaired driving it is critical that current legislative and operational flaws be addressed.

Biography

Dr Julia Quilter is an Associate Professor in the School of Law and a member of the Legal Intersections Research Centre at the University of Wollongong. Her research focuses on criminal law responses to alcohol-related violence and ‘one punch’ fatalities and the law’s treatment of alcohol and drug intoxication.

Zero tolerance and drug driving laws

J. Quilter

School of Law, University of Wollongong, jquilter@uow.edu.au

All Australian States and Territories have drug-driving laws which make provision for driving under the influence of alcohol or any other drug as well as to ‘randomly’ test for the presence of ‘prescribed illicit drugs’. While ‘random’ drug road-side testing is equivalent to random breath testing (RBT), unlike RBT which tests for all forms of alcohol and demarcates whether an offence has been committed on the basis of prescribed concentrations of alcohol, drug-road side testing is for mere presence of an illicit drug and usually only for three illicit drugs: cannabis, methamphetamine and ecstasy. Fines and certain periods of license disqualification result from these offences. This paper considers whether there is an evidence-based rationale for the zero-tolerance approach reflected in such laws. This paper also considers the challenges posed for courts in determining guilt and for sentencing in drug driving cases. In a context where state governments and police forces have made major commitments to addressing drug-impaired driving it is critical that current legislative and operational flaws be addressed.

Biography

Dr Julia Quilter is an Associate Professor in the School of Law and a member of the Legal Intersections Research Centre at the University of Wollongong. Her research focuses on criminal law responses to alcohol-related violence and ‘one punch’ fatalities and the law’s treatment of alcohol and drug intoxication.

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