17. Aboriginal Customary laws and the Criminal Justice System
The Interaction of Aboriginal Customary Laws and the Criminal Law
401. The General Principle. Aborigines are subject to the general criminal law in Australia, and in the Commission’s view this should remain the position. In fact the appropriateness of the general application of Australian law to Aborigines has not really been disputed in evidence or submissions to the Commission. Rather, the issue has been the perceived failure of the general law, and its enforcers, to allow room for Aboriginal customary laws and traditions to operate in areas where those customary laws and traditions are strong. As it was vividly put, the general law is ‘pressing in upon’ Aboriginal communities in their efforts to maintain order. In the Commission’s view, the general law should in appropriate cases take into account or allow for the customary laws and traditions of local Aboriginal groups, without being displaced by them. This implies in turn that the recognition of Aboriginal customary laws will involve the modification rather than the displacement of criminal liability under the general law. Techniques of modification could include the application or extension of existing criminal law defences, or the creation of new ones in at least some cases, and the use of powers or discretions both at the pre-trial stage and during the trial to avoid or mitigate conflict in particular cases (for example, the use of prosecution and sentencing discretions) and sensitive policing. Modifications of the rules of evidence and procedure may also be desirable.
402. Different Kinds of Conflict. The question is, therefore, whether and in what ways Aboriginal customary laws should be recognised within the framework of the general criminal law. In responding to this question it must be recognised that conflicts between Aboriginal customary laws and the general criminal law are diverse in kind and may be seen in different ways. Whereas the general criminal law provides that certain conduct may constitute an offence which is punishable by the courts, Aboriginal customary laws are not so much a code of particular rules as a pattern or guide, structuring the ways in which conflicts, and responses to conflicts, occur. For these reasons, conflicts between Aboriginal customary laws and the general law may require different responses in different contexts. The following examples illustrate the range of conflicts that can occur: they are not an exhaustive categorisation.
An Aborigine may commit an offence against the general law which will also elicit a customary response. Homicides and serious assaults by one Aborigine against another may result in what could be described as a ‘customary punishment’ (eg immediate payback or some form of community condemnation) even where the original offence had no particular customary basis. In some of these situations the dispute may have been resolved to the community’s satisfaction before the matter comes before the court. Should the court refrain from intervening? If it is to intervene, how should customary laws or ‘punishments’ be taken into account: Is it sufficient to take them into account only in sentencing the offender?
An Aborigine may be positively required under his customary laws to perform a certain act which will result in an offence against the general laws. For example in R v Charlie Limbiari Jagamara the accused, an elderly man, had pleaded guilty to the manslaughter of another Aborigine who he believed had had an illicit association with his wife. The accused had inflicted a stab wound with a spear into the shoulder of the dead man. In sentencing the prisoner to imprisonment until the rising of the court Justice Muirhead commented:
It is clear that the Crown has accepted the fact that there was no intention at this time to inflict a death-producing blow, but merely to inflict a wound which would satisfy the prisoner’s traditional views as to the appropriate response in the situation in which he found himself faced. There is little doubt, and it comes through in the record of interview that he felt he was participating in the motions of the white man’s law, but in his mind he was in no doubt that by his own customary law he had done what he believed was required to be done.
Such cases are relatively rare, but they raise the questions whether the general law should in such situations allow the requirements of Aboriginal customary laws to operate as a defence, total or partial, to the charge, whether the general law should be restrained in its operation in some way by virtue of the fact that the matter has been resolved within the relevant community under its customary laws, and in such a way generally regarded as satisfactory, or whether these customary laws should be taken into account in reducing the punishment applicable under the general laws.
Conduct which is regarded as a serious violation of Aboriginal customary laws may not be unlawful under the general law, yet the violation can cause great distress and disruption within Aboriginal communities. The question arises whether some form of in corporation of Aboriginal customary rules in the general law may be appropriate, and, if so, what form it should take. This is one area in which requests have been made to the Commission to assist the operation of Aboriginal customary laws.
Many offences against the general criminal law involve no question of Aboriginal customary laws (eg motoring offences). But Aborigines may respond in a customary way, for example, to the death of a person in a car accident. Supernatural factors (eg sorcery) may be regarded as significant in such cases. There mere fact of modern technology and its use does not mean that Aboriginal customary laws are irrelevant to consequences that may have been produced.
Standards of behaviour of Aborigines acting in accordance with their customary laws may not fit neatly into the requirements of the mental element and defences to crimes in the general criminal law. Does the general law need changing so that it can properly take into account these factors? Should the courts in applying objective standards in determining criminality (eg through such terms as ‘disorderly’, ‘insufficient’, ‘unreasonable’) have regard to the standards of the relevant Aboriginal group or community rather than, or in addition to, any more general community standard?
Aborigines can be especially disadvantaged when they come before a court, due principally to problems of language and lack of understanding of the proceedings or of the concepts employed (eg the concept of ‘guilty’). Can these disadvantages be overcome by changing the laws relating-to evidence and court procedure, or their administration?
The general law may be so culturally insensitive to the situation of Aboriginal defendants that they run, in effect, a special risk of conviction. This may flow from different attitudes to or understandings of a situation, as in these examples given by Terry Syddall SM:
[T]raditional ‘growling’ has become ‘disorderly conduct’ in the eyes of a European police officer if conducted in public, and often results in the least culpable person being arrested and punished. Similarly ... countless ... men have been charged with obstructing police in the execution of their duty when all they were doing was fulfilling their roles as ‘men who take and hold’, or [Aboriginal] policemen.
But the special impact of the criminal justice system may result also from poverty, or different ways of life. This has often been the case with offences such as drinking or being drunk in a public place: given the living conditions of many Aborigines it may be very difficult to avoid technical offending. Similarly, offences such as ‘being without visible lawful means of support’ could easily be directed at Aborigines living in poverty. Some things have already been done by Australian legislatures and courts to remedy some of these problems. In some jurisdictions public drunkenness is no longer a criminal offence. Judges have interpreted offences which incorporate standards of ‘suffiency’ or ‘reasonableness’ by reference to the standards of the defendant ‘s community. For example in Daniel v Belton, the appellant was an Aboriginal resident at Roper River charged with having insufficient lawful means of support. The question was the proper standard to assess whether his means were ‘sufficient’. Justice Blackburn said:
[Counsel for the Crown] rightly emphasized that the law is for aboriginals and whites alike and that the appellant cannot claim to be exempt from provisions which create an offence for white men, on the ground that he is an aboriginal living aft a mission settlement. The contention that the provision applies equally to whites and to aborigines is of course unchallengeable, but the application of this particular law in any particular case must be in accordance with the principle [that what is relevant is D’s actual standard of living and his means for supporting himself at that standard]. Unless that principle is applied, it is obvious that many aboriginals in the Northern Territory. are habitually committing that offence, for they are living in conditions which for white men would entail that they were without lawful visible means of support.
The defendant’s means of support, apart from a small amount of money, were ‘the lilies of the lagoon, and wild turkeys’, together with some support from friends and family. Applying the test of the defendant’s actual standard of living, Justice Blackburn held that these means were sufficient for the purposes of the statute, and the conviction was quashed.
403. A Range of Issues. It is clear that the problem of ‘recognition’ of Aboriginal customary laws in the general criminal law is not a single, clearly defined issue but involves a number of complex, interlocking questions. These will be dealt with in the following Chapters. Underlying all these issues, however, is a basic question about the extent to which recognition of the customary laws of indigenous peoples is desirable at all in the criminal law. Before dealing with the issues in detail, it is helpful to describe how this question has been answered in relevant overseas countries. No doubt care is needed in any such comparison, given the different histories of the countries being compared, and the different status of their indigenous populations today. But there are also similarities, especially with North America, and the basic issues being grappled with are essentially similar. It is proposed to deal with the United States, Papua New Guinea, and (more briefly) Canada.
 See para 195-6. cf Groote Eylandt Aboriginal Task Force, Report, 15.
 During discussions at Yirrkala, November 1981.
 A customary law defence applicable in all cases would (subject to evidentiary considerations) involve the wholesale displacement of the general criminal law. See further para 442-450.
 See para 471-89, 504-22.
 See para 844-79.
 See references cited in para 37 and see para 99-101, 692-720.
 See R v Claude Mamarika, Raymond Mamarika & Andy Mamarika, Unreported, NT Supreme Court (Nader J) 17-19 August 1982.
 See para 471-89, 692-720.
 See para 442-50, 504-22.
 Unreported, NT Supreme Court (Muirhead J) 28 May 1984.
 id, 19-20.
 A partial defence would have the effect of reducing the gravity of the crime (eg from murder to manslaughter). A total defence would exonerate completely. See para 443.
 See para 471-89.
 See para 504-22.
 See para 454-70.
 D Frazer and others Transcript of Public Hearings, Alice Springs (13 April 1981) 1428.
 See para 425-7, 441.
 See para 546 where these problems are outlined.
 See para 543-613.
 T Syddall, ‘Pre-Trial Diversion: A Magistrate’s Perspective’ in I Potas (ed) Prosecutorial Discretion, Australian Institute of Criminology, Canberra, 1985, 203, 210. See also Langton (1983) esp ch 2.
 (1968) 12 FLR 101. See Police and Police Offences Ordinance (NT), s 56(1)(a).
 Citing Zanetti v Hill (1962) 108 CLR 433, 441 (Kitto J).
 (1968) 12 FLR 101, 109.
 cf para 415, 475, 523, 543.