A Partial Customary Law Defence

451. Diminished Responsibility under Aboriginal Customary Laws: A Partial Defence? Even if a customary law defence, entirely absolving a defendant from criminal liability, is rejected, it can be argued that compliance with Aboriginal customary law should be regarded at least as a partial defence, similar to diminished responsibility, with the effect of reducing what would otherwise be murder to manslaughter. A partial customary law defence would not be subject to a number of the criticisms made of a general defence. It would not deprive potential victims of legal protection or of the right to redress in the same way as a general defence would tend to do. It would not involve an endorsement of payback killings or woundings, but would be an acknowledgment of the direct conflict of laws and allegiances that can occur. A partial defence goes as much to mitigation of punishment as to substantive criminal liability. Given that, except in New South Wales, sentencing discretions are not at present available in murder cases,[161] the situation is that judges are not able to reflect any reduced degree of culpability in sentencing where Aboriginal customary laws have been a key factor in an offence. Thus a partial defence would be an adjunct to existing sentencing discretions, and it would also involve the jury as representatives of the general community.[162] It would make that discretion available (as it may not be now) in cases which would otherwise be classified as ‘murder’.

452. Contrary Arguments. There are significant differences, then, between a partial defence and the general customary law defence already rejected. But some at least of the arguments outlined in paragraph 449 tell against even a partial defence. For example, proving the requirements for the defence would still be difficult, and might bring unwelcome scrutiny onto the local community’s traditions and laws. A partial defence would not apply in many cases, since relatively few homicides involving customary laws result in a verdict of guilty of murder.[163] On the other hand, such a partial defence would be most relevant in cases of deliberate homicide, the very situation where, it has been concluded, there is least justification for allowing customary law processes to operate.[164] In all other cases the same result can be achieved, in a less formal way, through the use of discretions. It can be argued that the law must set its face, at the level of responsibility, against all forms of killing and life-endangering assaults, and that in all other cases a sentencing discretion is available to take into account the absence of subjective criminality.[165]

453. Conclusion: A Partial Defence. A general sentencing discretion exercisable in all cases would substantially reduce the need for partial defences which were originally introduced to circumvent mandatory sentences for murder.[166] But partial defences are an established part of the criminal law, which regulate degrees of culpability in homicide and guide judicial discretion in sentencing. Reliance on existing procedural discretions is not sufficient. Sentencing discretions should be available in all cases involving Aboriginal customary laws, and creating a partial defence would have the effect of activating existing sentencing discretions in all Australian jurisdictions.[167] Such a partial defence would also constitute a more direct and explicit recognition of Aboriginal customary laws. Given the acknowledged difficulties Aborigines experience with the criminal justice system[168] this is an important and, in the Commission’s view, the decisive, consideration.[169] A partial customary law defence should be created, similar to diminished responsibility, reducing murder to manslaughter. It should be provided that, where the accused is found to have done an act that caused the death of the victim in the well-founded belief that the customary laws of an Aboriginal community to which the accused belonged required that he do the act, the accused should be liable to be convicted for manslaughter rather than murder. Thus it must be shown (the onus being on the accused on the balance of probabilities) that the accused’s belief actuated his conduct, (ie that he was not acting for some extraneous motive using Aboriginal customary laws as an excuse), and that the belief in question was well-founded in the customary laws of the community.[170] It can be argued that the former requirement only is sufficient (as it is with the defence of bona fide claim of right[171]), and that to require the belief to be well-founded as well as honest is too strict a test. But, in the Commission’s view, provided at least that purely subjective factors can be taken into account in sentencing,[172] an objective element is also required. If concessions are to be made at the level of criminal liability to the customary laws of Aboriginal communities the accused should be required to have acted in accordance with those laws as they are. Aboriginal groups have consistently expressed the view to the Commission that they should have some independent voice in the outcome of the criminal justice process, where Aborigines are tried and Aboriginal customary laws or community values are relied on as mitigating factors.[173] A requirement that the defendant’s belief be well founded in the customary laws of the community is more consistent with this view.

[161]See para 519-522. The NSW discretion is only available in limited cases.

[162]This assumes that juries can or should act in this capacity in the trial of traditional Aboriginal defendants. See para 586-95 for discussion of the role of juries.

[163]See para 497.

[164]See para 447.

[165]For the suggestions that the Criminal Code 1983 (NT) s 41 defence of coercion may have this effect see para 430 n 83.

[166]S Bell, ‘Diminished Responsibility Reconsidered’ [1982] Crim L Rev 809.

[167]See para 520-22.

[168]See para 394-400.

[169]In ALRC DP 20 (1984) para 25 the Commission tentatively suggested a partial defence along these lines. This approach was supported in a number of submissions: Sir William Kearney, Submission 411 (1 May 1985); AJ Murray, Submission 455 (28 May 1984). On the other hand the National Police Working Party did not favour any form of a customary law defence: Submission 459 (18 September 1984).

[170]The PNGLRC recommendation (para 408) requires not only that the accused have acted in accordance with ‘the customary law and traditional perceptions of the customary social group to which he belongs’, but that the customary law should have been followed by a ‘significant number’ of that group (in the case of diminished responsibility killings) or a ‘number’ of them (in the case of general defences). It does not require that the victim have been a member of that group, or have accepted its custom, and it pays no attention to the victim’s ‘customary law and traditional perceptions and beliefs’.

[171]See para 434.

[172]See para 516-7, 522.

[173]See para 195, 414, 448 n 149, 455-8, 510, 524, 531, 712.