Criminal Law Defences and Aboriginal Customary Laws

420. A Long-Standing Issue. A perennial issue in the application of the criminal law to traditional Aborigines (and to traditionally oriented native offenders generally) has been the appropriateness of various defences to what, according to the standards of the majority, may be unusual states of mind or belief. Much of the discussion has centred on the defence of provocation, but the question arises for a variety of other defences as well.[23] It is convenient to deal with provocation first, as the defence which has been most discuss ed and with respect to which the law is now relatively clear in relevant respects.

[23]Strictly speaking provocation is not a defence but an element which, once appropriate evidence is available, has to be negatived by the prosecution beyond reasonable doubt. However the usual practice is to describe as criminal law ‘defences’ a variety of grounds of exculpation or partial excuse, whether or not these are, properly speaking, defences. This practice has been adopted in this Chapter. For a general classification of defences see PH Robinson, ‘Criminal Law Defences: A Systematic Analysis’ (1982) 82 Colum L Rev 199.