18. Aboriginal Customary Laws and Substantive Criminal Liability

413. Scope of this Chapter. In this Chapter the ways in which Aboriginal customary laws can or should affect liability under the general criminal law will be discussed. Three main issues require examination: first, intent and related questions; secondly, existing criminal law defences and their application to Aborigines, and thirdly, the nature and scope of a possible customary law defence.

414. Disparate Ideas of Responsibility. With certain exceptions these issues do not involve the direct translation or transposition of Aboriginal customary laws as such.[1] Most systems of indigenous customary law concern themselves not so much with assessing culpability on grounds of ‘fault’, as with attributing responsibility for harms caused (or deemed to have been caused) by a particular person. Aboriginal customary laws are no exception to this. Under Aboriginal customary laws, punishment depends more on causation than intent, and only limited attention is paid to the concept of degrees of fault or responsibility.[2] It is the general Australian law which, generally speaking, insists on fault as an essential basis of criminal responsibility,[3] even assessing degrees of fault for major offences such as homicide. The law defines the range of prescribed harms (eg death, personal injury), but does not attribute criminal responsibility to those who cause such harms in the absence of their intention to cause, or recklessness as to causing, them (or, in certain cases, their blameworthy negligence).[4] ‘Fault’ lies in voluntarily performing an act with some degree of awareness of its nature or likely consequences (in the absence of any relevant defence).

415. The Relevance of Recognition. Thus a defendant’s belief that he was entitled, or even required, to perform the relevant act is, in general, irrelevant to the assessment of criminal responsibility.[5] On that basis (questions of a possible customary law defence apart), it might be argued that issues of the mental element in crime, and the availability of defences, are outside the scope of an inquiry into the recognition of Aboriginal customary laws. However, the matter is by no means so simple. If the law were to attribute to a traditional Aborigine a particular state of mind, or were to make defences available only where the defendant’s actual state of mind corresponded with what it regarded as the ‘normal’ state of mind, there would be a real risk of imposing on a defendant attitudes and beliefs he did not share or even, in some cases, comprehend. The differences in world-view and cultural response between traditional Aborigines and persons brought up in a ‘normal’ Anglo-Australian environment can be enormous. It may be unjust not to recognize responses produced by adherence to Aboriginal customary laws and traditions, or to treat them as equivalent in exculpatory effect to responses produced by different backgrounds and beliefs. These problems will be examined in the context of the conflicts between the general criminal law and Aboriginal customary laws outlined in the previous Chapter, since Aboriginal customary laws, and associated traditions and beliefs, may often be the origin and explanation for the differing states of mind with which the general law has to deal.

[1]On the different meanings of the term ‘recognition’ see para 199-208.

[2] See para 433 & see Ch 28 for further discussion. For a particular illustration see DB Rose, Dingo Makes us Human: Being and Purpose in Australian Aboriginal Culture, PhD thesis, Bryn Mawr College, Bryn Mawr, 1984, 333-379.

[3] Except for statutory offences of strict liability (largely irrelevant for present purposes).

[4]cf Glanville Williams, Textbook of Criminal Law, London, Stevens, 1978, 42-67.

[5]At common law a mistake of law (with rare exceptions) is not an excuse. See para 434. Conversely, a defendant may not be criminally responsible even though he did believe that what he was doing was morally and legally wrong. cf Ngatayi v R (1980) 30 ALR 27.

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