21. Aboriginal Customary Laws and Sentencing
Aboriginal Customary Laws and Sentencing: Existing Law and Practice
491. Some Case Studies. In discussing the relevance of Aboriginal customary laws in sentencing, an essential first step is to assess how judges actually deal with it in particular cases under the present law. A few such cases have become well-known, notably the decision of Justice Wells in the Sydney Williams case. But that is only one case — and by no means a typical one — among many. In order to give a clearer idea of the nature of the problem, and of how the courts are dealing with it in cases involving Aboriginal customary laws, some of the more important cases in the last decade are set out here in some detail.
492. R v Sydney Williams. Williams, an initiated Pitjantjatjara man, had killed a woman with whom he had been drinking, at Nundroo near Yalata in the far west of South Australia. He was charged with murder and brought to Adelaide for trial. The victim was very drunk and had insulted Williams, mentioning what defence counsel claimed were tribal religious secrets which women are not supposed to know, let alone speak of. Williams told her to keep quiet but she continued to taunt him until, losing his self control, he hit her violently with a stick and a bottle and killed her. He made certain confessions which were challenged on various grounds at his trial for murder, but which, after a hearing on the voir dire, were admitted. Justice Wells, with the Crown’s consent, then accepted a plea of guilty to manslaughter, taking the view that there was sufficient evidence of provocation to justify reducing the charge of murder to manslaughter. In his Submission on sentence counsel for Williams emphasised the extreme nature of the provocation in mentioning tribal secrets. He added that tribal elders had taken up the matter and that Williams was due to be punished according to tribal law. This would involve taking him to sacred areas beyond the Musgrave Ranges for about a year where he would be instructed by the elders in tribal history. The exact punishment to be imposed was not mentioned. On completion of the plea, Justice Wells said, in effect, that tribal justice should be reinforced if possible rather than simply being replaced by the European conceptions of justice, and that this would not represent an abdication of the role of the Supreme Court. In sentencing Williams, he said:
[Y]ou killed [the victim] and you broke the law. I know that she made you mad by the things she said to you. She spoke of forbidden things ... and you told her to sit down and keep quiet. She spoke again of more forbidden things and this time you got very angry and hit her with a stick and a bottle. You were a bit drunk and [the victim] was full drunk, but when you hit her you hit her very hard and killed her. That was wrong and forbidden by law. I must now deal with you. I am going to send you straight back to your tribe and have you handed over to the Old Men. You must behave yourself for two years and not get into any trouble. You must do what the Old Men tell you to do for one year. You must not drink wine or beer unless the Old Men allow you to. If you do any bad or wrong things or if you do not do what the Old Men tell you to do, you will go to gaol here in Adelaide for two years.
The order of the Court is ... that [Williams] is sentenced to imprisonment with hard labour for two years (and I have taken into account the three months that he has already spent in custody). That sentence is suspended upon his entering into a bond in the sum of $10 which shall contain the following conditions:
1. He shall be of good behaviour for a term of two years from this date.
2. He shall return forthwith to his tribe, the Kokota tribe, and shall there submit himself to the Tribal Elders and shall, for a period of at least one year from this date, be ruled and governed by the Tribal Elders and shall in all things obey their lawful orders and directions.
3. In particular, he shall, while he is under the control of the Tribal Elders — and that means for at least that one year referred to — abstain from intoxicating liquor unless he is permitted to drink intoxicating liquor by the Tribal Elders and then only to the extent of any permission granted.
It should be noted that his Honour made no reference to traditional punishments of any kind (although the matter had been discussed by counsel), and that he required Williams to submit himself to the ‘lawful orders and directions’ of the tribal elders, by which he clearly meant orders and directions lawful under the general law. It is not clear what, if anything, Williams or the elders understood by the term ‘lawful’. His Honour explained the sentence in the following terms, in correspondence with the Commission. After referring to the issue of traditional punishment and double jeopardy, he stated:
the real reason why I was disinclined to impose an immediate custodial sentence was because I would almost have been committing the prisoner to a living death while he was in custody and he might very well have gone into a decline and, in fact, have died. The fact was that he had very little English: it would have been impossible for him to have communicated with the staff of the prison or with any fellow prisoners, or to have related to them in any way. He would, in effect, have been in solitary confinement. To condemn a tribal Aborigine to such a fate was something which I wished, if possible, to avoid. The question of punishment by the tribe was barely alluded to, as I recall it, in the Court and certainly no mention was made of what it was the tribal elders had in mind to do.
The decision was by no means novel, but it was widely misinterpreted in the press, and, perhaps as a result, by the community at Yalata as well. The Mission Superintendent at the time, Mr BG Lindner, explained the events that followed in these terms:
The elders did not want a ‘tribal’ thing made of it. The death had not occurred in anything resembling tribal circumstances. The elders were perplexed by the defence counsel’s aggressive intrusion into tribal matters ... [W]e heard on the radio that Williams was released on a two year bond, and that he would be returned to Yalata by police aeroplane that day. The elders were informed but had no interest at all in meeting the plane. The whole matter had become a white-fellow exercise. I met the plane, and was handed a copy of William’s bond. Williams returned with me to the village. He did not go to the nearby aboriginal camp ... [Four days later] Williams agreed that it would be best for him to return to the camp. This he did. He was later ritually speared by an elder ... A thin, plain spear was used: He was speared either three or four times in the thigh. Penetration was not deep, and the spear was not barbed. Williams came to the clinic soon afterwards., and received very minor medical attention. He then returned to the camp ... I have no reason to believe that the spearing was considered by the aboriginal people as being ‘punishment’ for the woman’s death. Tradition demanded subjection to this practice prior to resumption of normal community association s. It is also signalled the end of the matter ... Williams was not taken ‘to areas beyond the Musgraves for about a year’. I heard nothing to indicate that this suggestion came from the men. I gained the impression that Williams thought it a bit of a joke.
Regrettably the concern shown for Williams by the trial judge in this case was ineffective. Williams later committed a series of assaults on Aboriginal women, and was gaoled in 1978 and again in 1980. There is no indication these offences had any customary law elements. The Yalata elders refused to act as sureties for Williams to be released on bail pending trial in 1978.
493. R v Larry Colley. Colley, a fully initiated man, 28 years of age, was charged with the murder of his traditional wife, and convicted by the jury of manslaughter. During a domestic argument at Jigalong (WA), Colley struck his wife many times with a large piece of wood. Her injuries were extremely severe and resulted in death. It was stated that he felt bound to punish her because of tribal law. Both had consumed a large amount of alcohol. Some evidence was presented at the trial that another man had stirred up some of the trouble by teasing the prisoner and telling him lies about his wife. Colley had no relevant previous convictions. He had worked for a time as a police aide. His work there had been extremely good for nine months but then began to disintegrate as a result of his wife’s drinking habits and infidelity. He left his job to return to Jigalong in an attempt to keep his wife out of trouble. Evidence was given at the trial by two elders from the Jigalong community that he would be accepted back. There was the possibility of some traditional punishment but he was regarded as being a very good person and a job would be provided for him. Counsel for Colley relied on R v Sydney Williams, arguing that he should be released on probation to avoid what would effectively be a form of double jeopardy. His liability to tribal punishment was a special circumstance to be taken into account. Counsel for the Crown argued strongly that the sentence should be assessed ‘without any consideration at all to tribal consequences’, because these consequences would occur outside the law and probably contrary to it. He submitted that:
For our law to be respected as distinct from the tribal law ... the consequences of [homicide] ought to be punishment by our law in the appropriate manner ... [otherwise] the respect for our law as such — which, it is clear, aboriginal people have; that our law does punish offenders appropriately — would be lost ... [T]hose factors which we say legitimately can be taken into account ... are his good character, his lack of record and his history with the police force. The fact of his behaviour in the tribal setting, where he has obviously been a model child and a very good tribesman, respected by his people, and the circumstances under which he committed the offence ... are proper factors for your Honour to take into account ... [But] so far as the consequences we are imagining might befall the prisoner are constituted by unlawful acts, as tribal spearings are according to our law, they ought not to be taken into account at all.
Counsel added that it was not clear what, if any, punishment would be inflicted. Justice Brinsden sentenced Colley to three years imprisonment and fixed a non-parole period of three months. He took into account the fact that Colley had been in custody for six and a half months. He said:
I take into account that perhaps in your own tribal customs you would have been expected, as the pre-sentence report suggests, to have inflicted some punishment on [your wife] — but certainly not under their law or ours, the punishment which was in fact inflicted ... However, I must sentence you to a term of imprisonment because I think the law I have to enforce requires it at this stage. I believe it is possible that you will be punished also. I do not know the form of punishment. It is said by the Crown that I should not take it into account because it will most probably be unlawful. It may not be. I do not know. I have given some credit to that in fixing the minimum term.
494. R v William Davey. Davey, a 34 year old Aborigine from Borroloola (NT), pleaded guilty to the manslaughter of another Aborigine. The victim had interfered during a fight between Davey and his wife and had made certain remarks to Davey which the Crown accepted were provocative. Davey picked up a large piece of timber and struck the victim once on the head. He died as a result of the blow, although it seems clear that Davey did not intend to kill him. All three persons were heavily intoxicated. Davey had only one minor previous conviction. The community adviser gave evidence at the trial indicating that the victim’s remarks. which referred to the fact that Davey’s wife had earlier been promised to the victim, were regarded as improper. At first instance Justice Gallop in sentencing Davey referred to the seriousness of the offence of manslaughter, and continued:
it seems to have been the sort of accident where you were forced to take some sort of an action according to your tribal customs and traditions, and that [the victim] ... should not have intervened in what was essentially an argument between you and your wife ... [O]ne of the things that I take account of always in a case like this, it being something which has happened within the Aboriginal community, is to pay close regard to what your community ... thinks about what you did. [I]t is a very important thing that your community has considered what you did and they have decided that mostly it was [the victim’s] fault, that you hit him and killed him. It is very important to me that your community think that you should come back into the community. It is very important that there is not going to be any payback, so I am told, and that there will be no further trouble if you go back to your community at Borroloola.
Justice Gallop imposed a sentence of 3 years imprisonment but suspended it upon Davey entering into a 3 year good behaviour bond and submitting to the supervision of the Director of Correctional Services. The Crown appealed to the Federal Court against the sentence, on the grounds of manifest inadequacy, and on the ground that Justice Gallop erred in ‘taking into account ... that the respondent seemed to have acted in accordance with tribal customs and traditions’. On this latter point, Justice Muirhead said:
In the exercise of its criminal jurisdiction the Supreme Court of the Northern Territory concerns itself with many aboriginal people. Of these, a number live under tribal culture and tradition and come from areas remote from the court. The court has for many years now considered it should, if practicable, inform itself of the attitude of the aboriginal communities involved, not only on questions of payback and community attitudes to the crime, but at times to better inform itself as to the significance of words, gestures or situations which may give rise to sudden violence or which may explain situations which are otherwise incomprehensible. The information may be made available to the court in a somewhat informal and hearsay style. This is unavoidable as it will often depend on a consultation with aboriginal communities in remote areas. In this case the Crown Prosecutor did not object to the presentation of the submissions, the evidence in mitigation of sentence, nor the manner in which the evidence was submitted.
On the general issue of the inadequacy of sentence Justice Muirhead said:
The evidence which led his Honour to conclude there was some type of traditional provocation which resulted in the fatal blow was meagre, but it was not then challenged by the Crown and was ... a hypothesis reasonably open to him upon the evidence. It was proper to take it into account in considering why the respondent had suddenly acted in such a manner. This evidence also weighed with his Honour as he commented that he paid ‘close regard to what the community thought’ and he regarded the view that the respondent ‘should come back into that community’ as important. These must be relevant considerations especially when dealing with offences which take place within aboriginal communities, and involving only those people. [Counsel] for the Crown, emphasised that the respondent had much past contact with the European community having spent some years in a leprosarium, and later having worked consistently as a stockman. But association with white people does not necessarily erase deep-rooted customary fears or beliefs, nor does it eradicate the sense of what is, or what is not, acceptable or appropriate. I do not consider this court should interfere on the basis that the trial judge erred in attaching weight to these matters.
His Honour stressed the seriousness of the offence and the leniency of the sentence, but noted on the other hand the doubtful deterrent effect of sentencing, especially in respect of alcohol-related offences, the ‘devastating effects of liquor, especially upon aboriginal society’, and the need to promote reformation of offenders in appropriate cases, as the best form of protection to society. He concluded that the sentence was ‘within the proper exercise of [the trial judge’s] very wide sentencing discretion’. Chief Judge Bowen and Justice Evatt agreed in the result.
495. R v Joseph Murphy Jungarai. Jungarai was charged with murder after he stabbed another Aboriginal man in Tennant Creek. He was drunk at the time, so much so that he could not afterwards recall what happened: medical evidence suggested that he was suffering from alcohol-induced amnesia. The attack on the victim apparently arose from resentment at attention Jungarai believed the victim had paid to one of his wives. Jungarai was committed for trial, bail being refused by the magistrate. On a further application to the Northern Territory Supreme Court, Chief Justice Forster ordered his release on bail. In giving his reasons for doing so, he said:
Whatever may be the defences available to the accused under the law of the land and whether the appropriate verdict after the trial may be guilty of murder, guilty of manslaughter or not guilty, it is plain that according to Aboriginal law and custom the accused is held responsible for [the victim’s] death and must accordingly be punished. The precise tribal punishment appropriate for the accused is not absolutely certain, but the strong probability is that it will consist of a single ceremonial spearing in the leg followed by banishment into the bush for a period to be fixed in order to remove from the community a possible focus for trouble ... The extended families of the deceased and the accused are in a state of mutual hostility which will only cease when the whole matter is ‘finished up’ by the accused suffering the appropriate tribal punishment. The accused is willing, indeed anxious, to undergo this punishment and feels deeply his inability to do so in order that peace between the families may be restored ... As a result of the court proceedings the accused will either be convicted of murder or manslaughter or will be acquitted. If he is convicted, it is likely that he will be in prison for a period which will satisfy the banishment requirement, even though this is a result of the court’s action rather than the communities. If he is acquitted, or, having been convicted, is dealt with in such a way that he is not in prison. the accused will return to the community and may then be banished if it is thought necessary to do so to avoid trouble. Whatever may happen as to this aspect, it is almost certain that until the spearing has taken place the matter of retribution or pay back in Aboriginal terms will be unresolved and the community will be ill at ea se and serious trouble may flare up at any time. It is equally certain that once the spearing has occurred, the unease and the probability of serious trouble arising out of the killing will be at an end. In these circumstances and notwithstanding the fact that persons charged with murder are normally not allowed to be released on bail I considered it right to make the order which I did make. This should not be regarded as a precedent in the sense that the mere assertion of similar facts from the bar table will be sufficient ... to justify a similar order in every case. There must be credible evidence to support such a course being taken ... Aboriginal customs vary greatly from place to place and, of course, the circumstances of killings must differ ... I should also say that for the purpose of dealing with the application for bail I express neither approval nor disapproval of the course proposed to be taken by the family of the deceased, endorsed as it is by the community — including the family of the accused. Whether or not the proposed action constitutes an offence under the law of the land seems to me, for present purposes, to be irrelevant. The order for release on bail should not be interpreted as necessarily involving approval of what will happen nor, of course, should my failure to approve it be interpreted as disapproval. What will almost certainly happen is simply, for present purposes, an important fact to be considered.
At his subsequent trial, the Crown accepted a plea of guilty to manslaughter, no doubt taking into account the defendant’s intoxication. In giving his reasons for sentence, Justice Muirhead said:
The killing, naturally enough, caused a furore in your own community to the extent that after your arrest you were released on bail by the Chief Justice of this court to undergo tribal punishment. This was apparently necessary to protect your family from pay-back. This took place, and I am told you have been beaten with nulla-nullas and boomerangs until you were unconscious. I am also told there is no likelihood of further pay-back or trouble in the community ... Your counsel has urged me to release you under a suspended sentence of imprisonment on the basis that you are unlikely to offend again, on the basis that the Aboriginal community’s anger has been quelled by tribal punishment, but I am afraid I cannot accede to that request. This court pays regard ... to tribal lore and customary punishments but the Australian law is designed to protect all Australians and I fear, if I ignore matters such as this — matters which occur between Aboriginal people — it can be said that the law does not extend to the protection of the black people. Furthermore you have illustrated you can be very dangerous in liquor and this crime was committed in a principal centre of the Northern Territory. There was no cultural tinge to the offence itself. It was simply a drunken stabbing which I am afraid is an offence far too prevalent amongst all sections in this Territory. You were carrying a very little, lethal knife and whilst you told the police you did not recognise it clearly you were carrying it for the purpose of violence.
He imposed a sentence of 6 years and 6 months, with a non-parole period of 2 years and 6 months. Jungarai appealed from this sentence to the Federal Court of Australia, but his appeal failed. Justice Toohey, delivering the judgment of the Court, said:
There is no doubt that, in sentencing the appellant, his Honour had regard to the fact that, after his release on bail, the appellant returned to All Curung where he was beaten by members of the community with nulla nullas and boomerangs until he was unconscious ... Counsel expressly conceded that if the matter were viewed without any of the overtones arising from the notion of tribal punishment, neither the head sentence nor the non-parole period would be open to challenge. His Honour was urged to release the appellant on a suspended sentence of imprisonment, because he was unlikely to offend again and because ‘the Aboriginal community’s anger has been quelled by tribal punishment’. His Honour was not prepared to accede to this request because of the seriousness of the offence and the circumstances in which it was committed. However he was willing to take those facts into account in deciding upon an appropriate term of imprisonment. Nothing that has been said by the appellant’s counsel has demonstrated any error on the part of the learned trial Judge. The question whether courts may and should have regard to forms of punishment imposed or likely to be imposed against Aboriginal people by their own communities is a difficult one. But in the present case the Crown made no submission that the learned trial Judge should not have regard to the actions of the community. Nothing that his Honour said suggests that he gave any question of tribal punishment insufficient weight. We are of the opinion that he gave all matters before him due weight and that the sentence and the non-parole period were each well within the exercise of a sound discretion.
496. R v Moses Mamarika. Moses Mamarika stabbed and killed his brother in a fight at Umbakumba, Groote Eylandt. The causes of the fight are not clear from the evidence, but it seems that there was some resentment between him and his brother over certain promised marriages. Moses Mamarika had three wives; the victim, the younger brother, was unmarried. They had both been drinking but it is not clear whether Moses was drunk at the time of the killing. The Crown accepted a plea of guilty to manslaughter, on the ground that provocation may have been available as a defence. Justice Muirhead described the ‘pay back’ that occurred immediately after the killing:
You anticipated that what you had done would result in payback. You armed yourself with a tomahawk and a spear, and soon you were defending yourself against 3 men armed with spears, intent on traditional payback and no doubt intent on killing you. You were left severely wounded by several spear thrusts, one of which penetrated your abdomen. You survived after surgery at Gove, but it is evident that the anger caused by the slaying of your brother has not yet subsided.
By consent of counsel I have received and read a letter signed by the President of the Umbakumba Council and members of the community, and written on behalf of the Council and on behalf of your family. I am asked to ensure you do not return to your home for 3 years or more. They also ask that you be not further imprisoned, and suggest you be required to remain on a mainland outstation. In accordance with the practice of this court, which welcomes demonstration of the wishes of the Aboriginal communities when the crime concerns these people, I have given full consideration to the request ... But I take the view that you must first serve further time in prison, both by way of punishment and as a warning to that community, before you can be released. The reasons are these. There are too many cases involving killing of Aboriginals by Aboriginals coming before this court. Most are liquor induced killings. People who have been drinking become careless of each other and lose tolerance to insult or wrong doings. Only in exceptional circumstances, so far as I am concerned can a sentence for manslaughter result in immediate conditional release. Your community may regard what is virtual temporary banishment from your home land as adequate sanction and that I understand. I doubt whether imprisonment has ever made much sense to your people. Traditional punishment methods were probably far more effective ... But imprisonment is now well understood as a punishment handed out by the courts of this Territory and my experience is that an order for conditional release is too often misunderstood or ignored and your own recent record may illustrate this.
The defendant was sentenced to 7 years and 6 months hard labour, with a 2 year non-parole period. On appeal it was argued that the trial judge had not sufficiently taken account of the traditional punishment, or the community’s view, in sentencing. The Crown did not argue that these factors were irrelevant, only that they had been sufficiently taken into account. Having referred to the letter expressing the Umbakumba community’s views, the Court said:
On a proper analysis of the appellant’s case, it was not his submission that the wishes of the community should prevail over what might otherwise be seen to be a proper sentence. Nor in truth was it suggested that the Court should simply substitute a method of punishment known to and accepted by Aboriginal communities in lieu of a more conventional sentence. Rather it was the appellant’s case that he had already, because of the injuries he received and the time he has spent in custody, been severely punished. To release him now from custody but to place him under supervision and exclude him from his community for a period of say three years would, in all the circumstances, constitute a penalty appropriate to the offence. Anything more would be excessive. We find this submission persuasive in its general approach.
In the event, the Federal Court, while not varying the length of the sentence’, suspended it subject to his giving security to be of good behaviour for 4 years and to be subject to probation. The Court suggested that he should spend at least 3 years away from his home community, at the direction of the probation officer.
the influence of alcohol as a factor in many offences:
the fact that many of the offences involved only members of the particular Aboriginal community; and
the significance of domestic violence.
At a more general level, several things may be noted:
the relative frequency with which the issues have arisen, especially in the Northern Territory, in the last decade:
the frequency with which defendants were convicted of lesser offences (especially manslaughter):
the relative infrequency with which a complete Aboriginal customary law defence (had one been available as a matter of law) would have exonerated the defendant.
It may also be significant that most of the cases have been decisions of Supreme Courts, (although there are also instances of significant customary law issues arising before magistrates). This reflects the fact that customary law issues tend to be argued in the more serious cases (for example, aggravated assaults, homicides), and to a much lesser extent in the case of minor property and public order offences dealt with in courts of summary .jurisdiction.