Existing Procedures

472. Discretions not to Prosecute. Problems of conflict between Aboriginal customary law and the criminal law are quite often resolved by the police deciding not to pursue the case or by the Crown electing not to prosecute. Such decisions are not necessarily the result of a conscious policy decision. Quite apart from offences which are not brought to police attention, the police may decline to take action in the absence of a complaint by the victim. This may be the case where traditional punishments, not involving the infliction of grevious bodily harm or life-threatening injuries, have been inflicted. Although the police and prosecuting authorities do not have unlimited discretion not to prosecute for particular offences,[7] it is well established that they do have a broad discretion not to prosecute. Recent studies of this discretion, in Australia,[8] England[9] and elsewhere[10] have agreed both on the need for continued prosecution discretion, and on the desirability of guidelines for the exercise of discretion. The Commonwealth Attorney-General in December 1982 announced guidelines for prosecution by the Commonwealth of federal offences, in response to this need.[11] However, as is practically inevitable, the guidelines do not descend to the level of detail necessary to cope with situations of conflict such as those being considered here.[12] Nor do they deal with prosecutions brought by State or Territory police or prosecutors for offences against the general criminal law in that State or Territory. These represent virtually all the criminal cases in which issues of Aboriginal customary laws are likely to arise.

473. Relevance of Prosecution Guidelines. It may be that it would be helpful to lay down prosecution guidelines for police and prosecutors in cases involving customary law elements, perhaps as part of a broader set of guidelines on these questions. This is already the case in South Australia to a certain extent.[13] If non-prosecution is an appropriate indirect form of recognition of the operation of customary law in particular cases, then it is not enough to leave the decisions to prosecute, as now, to the virtually unfettered discretion of the policeman or official in question. Guidelines would help to avoid ‘arbitrary variations in prosecution policy and practice’,[14] at the same time reinforcing the accountability of law enforcement officials to the community. On the other hand, such special guidelines might be difficult to draft. Experience suggests that guidelines may be so open textured as in effect to return discretion to the officer or official in each case, although they could at least direct the official to take into account aspects of Aboriginal customary laws in reaching a decision.

474. Legality, of Guidelines. In the absence of statutory authorisation, there are limits to the use of guidelines by police or prosecuting authorities in excluding proceedings in a class of cases. The discretion not to prosecute cannot be used so as in effect to dispense with the requirements of the criminal law,[15] or to exclude an entire class of offences or persons from prosecution. Thus in R v Catagas[16] the Manitoba Court of Appeal disapproved a decision of the local Director of Wildlife that no prosecutions would be brought against Indians hunting for their own food on Indian reserves or unoccupied Crown land.[17] The Court held the attempted dispensation void, notwithstanding that it ‘flowed from a recognition of the Indian’s historic right to hunt game for food’.[18] The Court distinguished the exercise of prosecutorial discretion for good reason in particular cases.[19] Statutory provisions[20] authorizing ‘directions or guidelines’ with respect to prosecution certainly confirm and perhaps extend the scope of prosecutorial discretion, but would not be interpreted so as avoid the need to consider cases on their merits in the light of such guidelines.

475. Enforceability of Guidelines. A further limitation on prosecution guidelines in this context is that they are unenforceable and may therefore be ineffective. The courts have no general power to intervene to stay criminal proceedings on the ground that the prosecution should not have been brought, except in rare cases of vexatious or oppressive proceedings.[21] This might indicate that prosecution guidelines would be, in isolation, ineffective or inadequate. However the guidelines would not operate in isolation but in conjunction with other powers of the court, especially its sentencing powers. As Lord Justice Salmon pointed out in Blackburn’s case, if in certain circumstances the courts are likely to adopt a ‘humane and sensible course of imposing no penalty,[22] it is no abuse of prosecution discretion to decline to proceed. The court’s tendency to impose only a minor penalty, or no penalty at all, may discourage further prosecutions in like cases.[23] Greater attention should be given by prosecuting authorities to the appropriateness of declining to proceed in certain cases involving customary laws. Prosecution guidelines may be one way of achieving this result, although other options, considered below, which could work either as an alternative to, or in conjunction with, a set of guide lines, need also to be considered.

476. Consent to Prosecute. In certain limited cases, there is a statutory requirement that the consent of the Attorney-General or another officer be obtained before a prosecution is commenced.[24] It might be argued that the introduction of such a requirement would assist in ensuring that appropriate rather than inappropriate decisions are made on the prosecution of offences with customary law elements. But a consent provision would not avoid the need for decisions to be made on a case-by-case basis, and it is doubtful how much practical difference such a provision would make. Creating another level of decision making in the prosecution process might bring delays and would require additional resources, even though in the end relatively few cases would be likely to be affected. Moreover the issue is not just who should decide but on what grounds: a consent provision by itself would do nothing to resolve the latter issue.[25]

477. No Bill (Nolle Prosequi). The power of the Attorney-General or other law officer to enter a ‘no bill’ or nolle prosequi is a broad one, allowing the Attorney to terminate an action before or during court proceedings up to the time a verdict is given.[26] No reason need be given to the Court. A nolle may be entered by the Crown on its own initiative or as a result of application by a defendant or his legal advisers, arguing that a prosecution would not be in the public interest. There are no formal procedures for making such applications and the notion of ‘public interest’ is very broad. The power is no doubt to be used with caution and only for good reason, but there are good arguments for at least certain cases involving Aboriginal customary laws to be disposed of in this way. In R v Claude Mamarika. Raymond Mamarika & Andy Mamarika,[27] Justice Nader supported this view, suggesting that a no-bill application was a better vehicle than a potentially controversial decision of the court made on the basis of rules of public policy. The proper officer to consider public policy arguments, in his view, was the Attorney-General.[28] In the event the Attorney-General did not enter a nolle, and Justice Nader imposed suspended sentences on the two defendants who were convicted.

478. Conclusion on Prosecutorial Powers. On the basis that the general law makes particular conduct criminal, and that there is sufficient evidence of an offence in a particular case, the various powers discussed in paragraphs 472-477 may be available to avoid prosecution or conviction for acts performed in the context of or with the sanction of Aboriginal customary laws. On the other hand these powers are not powers to dispense generally with the criminal law. If in an identifiable class of cases Aboriginal customary laws should be treated as justifying particular acts then those acts should not be criminal at all: the remedy lies in amendments to the substantive law, not in the exercise of executive discretions.[29] Where prosecutorial discretions may be relevant is in those cases where Aboriginal customary laws, without necessarily justifying or excusing criminal conduct, are a significant mitigating factor, and where the Aboriginal community in question has through its own processes resolved the matter and reconciled those involved. Factors relevant in such cases would include the following:

  • that an offence has been committed against the general law in circumstances where there is no doubt that the offence had a customary law basis:

  • whether the offender was aware he was breaking the law;

  • that the matter has been resolved locally in a satisfactory way in accordance with customary law processes;

  • that the victim of the offence does not wish the matter to proceed;

  • that the relevant Aboriginal community’s expectations (or the expectations of each community, if there is more than one) is that the matter has been resolved and should not be pursued further;

  • that alternatives to prosecution are available, eg a diversion procedure;[30]

  • that the broader public interest would not be served by engaging in legal proceedings for little or no purpose.

These factors should be taken into account by police and prosecuting authorities in deciding whether to bring or maintain prosections in such cases. They could usefully be incorporated in prosecution guidelines at State and Territory level, and the Commission so recommends.

479. Refusal to Proceed to Conviction; Conditional or Unconditional Discharge. Powers of lower courts to refuse to proceed to a conviction, and of most courts to discharge without penalty a defendant whose subjective criminality is regarded as minimal (whether or not the discharge is conditional) are frequently used in cases of conflict of Aboriginal customary laws and the general law. Deferral of sentence is also an option available in some jurisdictions.[31] These powers are exercised substantially as an aspect of sentencing discretions, which are discussed in Chapter 21. The recommendations made there for taking Aboriginal customary laws into account in sentencing, apply equally to these powers to discharge conditionally or unconditionally, or to defer sentence.

[7]cf R v Metropolitan Police Commissioner, ex parte Blackburn [1968] 2 QB 118. And see para 474.

[8]ALRC 15 (Interim), Sentencing of Federal Offenders, AGPS, Canberra, 1980, 61-71; AP Bates, TL Buddin and DJ Meure, The System of Criminal Law Cases and Materials New South Wales, Victoria and South Australia, Butterworths, Sydney, 1979, 119-30. See also this Commission’s recent report, ALRC 29, Standing in Public Interest Litigation, Canberra, AGPS, 1985, para 367-377.

[9]Royal Commission on Criminal Procedure, Report, HMSO, 1981, 173-5; Royal Commission on Criminal Procedure, The Investigation and Prosecution of Criminal Offences in England Wales: The Law and Procedure, HMSO, 1981, 53-4, 210-17; AF Wilcox, The Decision to Prosecute, London, Butterworths, 1972, 112-123; AF Wilcox, ‘The Proposed Prosecution Process’ [1981] Crim L Rev 482; JLJ Edwards, ‘The Integrity of Criminal Prosecutions — Watergate Echoes beyond the Shores of the United States’, in PR Glazebrook (ed) Reshaping the Criminal Law, Stevens, London, 1978, 364.

[10]J Vorenberg, ‘Decent Restraint of Prosecutorial Power’ (1981) 94 Harv L Rev 1521.

[11]Commonwealth of Australia, Prosecution Policy of the Commonwealth, AGPS, Canberra, 1982. See also Commonwealth of Australia, 97 Parl Debs (Sen) (16 December 1982) 3648.

[12]Para 17 of the Commonwealth Guidelines treats as a major consideration ‘whether … the public interest requires the institution of the prosecution’. Factors relevant in assessing this ‘public interest’ are stated to include:

• the degree of culpability

• prevalence of the offence

• seriousness of the offence

among other ‘relevant considerations’. Among factors listed as irrelevant are:

• the offender’s race

• ‘personal feelings concerning the offender or the victim’ (para 19).

Neither the likelihood of a conditional discharge nor the absence of complaint by the victim are mentioned.

[13]With the approval of the South Australian Attorney-General, the police frequently exercise a discretion to prefer a lesser charge within the Magistrate’s jurisdiction rather than proceeding for an indictable offence: cf South Australia Police, Submission 183 (July 1980) 16-17. The Submission comments:

The result of [this] when coupled with increased magistrates courts into these areas has expedited the criminal justice process, provided for the court process to be observed by the Reserve Aboriginals, and prevented the unnecessary delay and transportation of prisoners to Pt Augusta Circuit Court to appear in a jury trial — before jurors of limited experience in Aboriginal matters.

[14]Royal Commission on Criminal Procedure, Report (1981) 136.

[15]cf R v London County Council ex parte Entertainments Protection Association Ltd [1931] 2 KB 215; cf Kumar v Immigration Department [1978] 2 NZLR 553, 557.

[16](1977) 81 DLR (3d) 396.

[17]The Canadian Supreme Court had held that the law in question (the Migratory Birds Convention Act) overrode any native hunting rights that may have existed at common law: Daniels v R [1968] SCR 517. See para 896.

[18](1977) 81 DLR (3d) 396, 401.

[19]This discretion, so long at least as it is exercised in relation to particular cases, is a broad one: cf R v Metropolitan Police Commissioner, ex parte Blackburn (No 3) [1973] 1 QB 241; Buckoke v Greater London Council [1971] Ch 655. See also P Bayne, ‘Prosecutorial Discretion and Administrative Law’ in IL Potas (ed) Prosecutorial Discretion, Australian Institute of Criminology, Canberra, 1984, 69.

[20]Such as Director of Public Prosecutions Act 1983 (Cth) s 8(1), 11(1).

[21]Connelly v DPP [1964] AC 1254; DPP v Humphreys [1977] AC 1; cf Rourke v R (1977) 76 DLR (3d) 193.

[22][1968] 2 QB 118, 139.

[23]cf R v Charlie Limbiari Jagamara, unreported NT Supreme Court (Muirhead J) 28 May 1984; R v Jacky Jagamara, unreported, NT Supreme Court (O’Leary J) 24 May 1984. See para 488.

[24]See ALRC 15, para 63, 68; ALRC 29, para 364-5 for illustrations.

[25]See para 486 for the suggestion that a special officer be appointed to make decisions on prosecution in customary law cases.

[26]About 5% of a sample of cases in several Australian States were terminated by the Crown through a nolle: J Willis, ‘Reflections on Nolles’ in Potas (1984) 173, 176-9.

[27]Unreported, NT Supreme Court (Nader J), 17-19 August 1982.

[28]Transcript of proceedings 176, 181-3.

[29]See para 442-53 for arguments about a customary law defence.

[30]See para 481-9.

[31]See S Jones, ‘Deferment of Sentence’ (1983) 23 Brit J Crim 381.