Pre-Trial Diversion

481. Scope of Diversion. The concept of diversion is a broad one, which is receiving increasing attention. Each of the existing procedures discussed above may be used to screen Aboriginal customary law cases, and each therefore represents a form of diversion from the criminal justice system.[32] The basic difference between them is the stage at which diversion occurs. At the earliest stage are offenders who do not, for a variety of reasons, come into contact with the police at all but who may be dealt with (if at all) privately within their families or their local community. At the next stage are those offenders whom the police decide not to charge or whom prosecuting authorities decide not to prosecute. At a much later stage in the criminal justice system there are the alternatives to imprisonment, such as conditional discharges and community service orders, which may also represent a form of diversion.[33] As has already been noted it would be possible to extend the use of these existing diversionary powers. But it would also be possible to establish some formal pre-trial diversion scheme. Such schemes are of relatively recent origin and have been experimented with in the United States,[34] Canada and elsewhere.[35] Essentially they involve not proceeding with charges in a criminal court but dealing with the cases by alternative means such as mediation or local community resolution. A pre-trial diversion scheme can take many different forms. It may be a structured scheme similar to probation. Or it may be unstructured: offenders might be simply diverted by the courts, through the exercise of adjournment or conditional discharge powers, so as to allow the local community to play a part in rehabilitation. In the Aboriginal context, a system of pre-trial diversion could be limited to the screening of cases involving Aboriginal customary laws. Or it could be directed at providing local Aboriginal communities with the opportunity to have an input into the way in which an Aboriginal offender is dealt with in a much broader range of cases.

482. Canadian Experience. The Canadian Law Reform Commission in its Report on Disposition and Sentences in the Criminal Process[36] recommended pre-trial settlement of certain criminal cases in accordance with specified criteria. The work on this Report included a major piece of empirical research carried out in the East York community of Toronto,[37] and a number of further pilot projects have since been undertaken, including one operated by the Native Counselling Service of Alberta (NCSA) in the ‘High Level’ area of North Western Alberta.

483. A Native Diversion Scheme. The High Level Diversion Scheme[38] began in 1977 as a pilot project funded by the Federal Ministries of Justice and Solicitor-General, with assistance from the Provincial Attorney-General and the Royal Canadian Mounted Police (RCMP). The area for the diversion program included two small towns, two Indian reserves and one Metis settlement, which were spread over a fairly wide area. It was chosen because of its relative isolation — oil had been discovered and the first liquor outlet opened during the 1960s — and the degree of social cohesiveness of the communities. But the principal factor in the choice was the high proportion of native people living in the area. The scheme sought to intervene at pre-trial stage. After a person (initially the scheme was limited to adults, but later juveniles were included) had been charged an assessment would be made of whether the case was suitable for diversion or should proceed in the ordinary way. Initially the RCMP had a role in this assessment process, with the local Crown Prosector making the final decision. Later the system changed, with the decision to divert being made by the Court. This changed the nature of the program in a number of important ways: it became like other sentencing alternatives, and it tied the process to court sitting days.[39] The diversion program had several stated objectives:

1. breaking the law breaking-incarceration cycles of Native offenders;

2. giving Native people a better understanding of the criminal justice system;

3. increasing community participation in the criminal justice system;

4. minimising the penetration of citizens into the criminal justice system.[40]

In essence the scheme aimed at providing an alternative to imprisonment (or a fine leading to imprisonment for default) for minor offences through keeping minor offenders out of the courts. It also required a significant community involvement’

The project was intended to involve community members extensively, through their participation in a Diversion Screening Committee which would develop, in conjunction with the victim and the offender, a suitable agreement whereby the offender would compensate for his offence … The diversion agreements were to be flexible with the emphasis being on the resolution of the problem to everyone’s satisfaction. Agreements might therefore require the offender to make a written or verbal apology, provide cash restitution, or to perform work for the victim or the community.[41]

The scheme included only a small range of minor offences.[42] For various reasons it failed to get widespread support, in particular from the criminal justice professionals involved. There was a low level of referrals, and a view that the objectives of the scheme could be achieved by greater use of other existing mechanisms, eg a fine-options program, or probation associated with a community work service order.[43] There was also concern over the lack of control over the offenders under the diversion scheme .[44] While conceding these problems, NCSA argued for its renewal based primarily on the success of the scheme (re-offence rates), the lack of success of other schemes when applied to Native people, and the community support received for it.[45] But the scheme was abandoned with the withdrawal of funding in 1981.

484. Native Diversion in New Zealand. A less formal diversion scheme has operated in the Maori community of West Auckland, New Zealand, for a number of years. The Te Atatu Maori Committee operates a kind of community court and hears cases referred to it by the court, the Police, the local school and voluntary community officers. It has thus dealt with cases, mainly involving juveniles, in which offences had been committed (eg theft) as well as cases involving anti-social behaviour (eg bullying) and general community problems (eg inadequate ca re of children).[46] The Committee has gained the confidence of the police and the courts,[47] who are prepared to divert cases to the Committee provided that the offender agrees to the matter being dealt with by the Committee. In hearing a case referred to it the Committee attempts to get the community involved by requiring the parents, family or others with a direct interest to attend. A description of one committee hearing gives an idea of the way matters are dealt with:

Discussions throughout the procedures were concerned with the total behaviour of the accused young persons and not just the offences alleged to have taken place. The result was a great deal of shame, remorse shown, restitution provided for, forgiveness afforded and a whole range of emotion which almost certainly has played a part in the fact that 8 of those 9 young persons have not re-offended.[48]

The Committee usually orders community work to be done for a period of time (not more than 200 hours) depending on the seriousness of the offences and the extent to which remorse is shown by the offender:

A vandal, for instance, would be given forty hours of community service to be spread over a number of weeks on his weekends and evenings. He might first be shown how to mend the windows of the community hall which he broke. Then perhaps he would be asked to mow the lawns of neighbouring pensioners. If his home life was in need, he may be required to apply his time to his own home — painting the house and mending the fence, digging the garden and helping his ‘neglected’ mother.[49]

Where cases have been directed from the Court to the Committee a report on the outcome of each case is prepared and sent to the Court. If the Committee has been unable satisfactorily to deal with an offender it may recommend that the court proceedings be reactivated.

485. Submissions Supporting Diversion. Several submissions to the Commission have proposed diversion schemes for cases with customary law elements.[50] The suggestions involved an exclusionary hearing either before trial, or as an interlocutory proceeding. The submissions argued or assumed that , in respect of at least some customary law matters, intervention by the general legal system is in principle undesirable. They did not seek to exclude police action to protect persons under threat or to prevent imminent violence,[51] but they did seek to protect the autonomy of Aboriginal groups in resolving the underlying disputes through customary processes, by preventing such disputes from coming before the courts in the form of criminal prosecutions.

486. Exclusion by a Pre-Trial Administrative Hearing. One submission suggested, as a possibility for discussion, the appointment of an official with special expertise and experience in customary law matters, to whom decisions on prosecution would be referred by the police, and who would, after formal or informal investigation of the facts, recommend to the Attorney-General whether a prosecution should follow.[52] Clearly any such recommendation, with accompanying reasons, would be influential, although not binding: in particular the Attorney-General would retain the discretion to order a prosecution in the general interest. One advantage of the proposal is that a person with special knowledge and experience in Aboriginal customary law matters would be responsible for preparing recommendations, rather than relying on prosecutors or departmental officers.

487. Exclusion by the Trial Judge on a Form of Voir Dire Hearing. Alternatively, it has been suggested that the trial judge should himself have power, at any stage of the trial, to adjourn or even terminate the hearing if it becomes clear that the matter has been satisfactorily resolved under the Aboriginal customary laws applicable to the parties, so that the public interest would not be served by continuation of the case.[53] A difficulty with this suggestion is that it might be thought to be inconsistent with the continued exercise of the trial judge’s functions for him to determine such an application in the course of the trial. A further difficulty would be to spell out the terms of the power to terminate or adjourn, and the considerations relevant in its exercise. This is particularly so in that the power to terminate proceedings (eg by nolle prosequi ) has always been an executive function. As the case of Claude, Raymond and Andy Mamarika shows, even robust judges are inclined to avoid making decisions of this kind, preferring to influence the outcome of cases in more orthodox ways (eg by the use of sentencing discretions).[54] On the other hand, this particular suggestion would avoid the need for appointment of a special officer whose work load would be variable and would be likely to involve only a relatively few cases. It might also help to ensure greater consistency and regularity of decision. A slightly modified version of this scheme was suggested to the Commission by Associate Professor Getches, based on his experience with United States Indians.

Perhaps the Commission ought to consider some modifications in the present judicial system, probably requiring legislation, that could deal with the problem of regulating conduct of traditional Aborigines, place appropriate reliance on traditional ways, and yet be a part of the court system that must deal with serious criminal activities defined by Australian law. For instances, magistrates (and justices of the peace in remote areas not regularly accessed by magistrates) might be assigned jurisdiction to deal with all criminal activity within a certain area and might be given civil authority as well. They would be authorised to defer to any traditional sanctions to which a person appearing before them might be subject whenever both the actor and the victim in a criminal case were Aborigines or in cases where an Aborigine committed a victimless crime. The magistrate or justice of the peace would have to respond differently in different communities depending on the level of traditional justice that might be available. In some places deference could be to sanctions or remedies imposed by an elder or by other community members. The extent to which deference to Aboriginal forums would be given necessarily would vary. In some places and situations there would be little or no deference.[55]

This proposal includes both a diversion scheme and a way for the court to take account of traditional sanctions and punishments but essentially it relies on the court as the decision-making body.

488. A Diversion Scheme for Aboriginal Customary Law Cases? In assessing the practicality of a pre-trial diversion scheme for certain Aboriginal offenders a number of questions need to be resolved. These include the selection and qualifications of the body or person who decides upon diversion in particular cases, the accountability of that body or person for decisions made, the supervision of offenders after diversion (including the supervision of any ‘penalty’, eg by way of reparation or community work imposed), and whether there should be a requirement of consent on the part of the defendant, the prosecution (and, perhaps, the victim) to the operation of the scheme. Difficulties such as these are among the reasons why diversion schemes within the general community, despite some promising experiments, have taken hold only to a limited degree.[56] However there are several further problems with proposals for a formal diversion scheme specifically for customary law cases.

  • Stage of Proceeding at which Diversion Operates. Questions of the selection and qualifications of the decision-making body depend on the stage at which diversion is to operate. A pre-trial procedure would require authority to be vested in the police, a special administrator or some other body. Diversion by the court itself would mean that the power was vested in the trial judge. Assuming the difficulty of consistency with the judge’s later hearing of the case, already referred to,[57] can be overcome, a further danger in giving the power to the court is that any pre-trial screening procedure may be deferred on the basis that the decision is one for the court. On the other hand, it has been argued that there should be some judicial control of pre-trial diversion, which should not be resolved simply by administrative means. Perhaps the best compromise would be to vest power in the committing magistrate, whose role is, appropriately, intermediate between an administrative and a judicial one, but who is not responsible for any eventual trial on the merits.

  • Selection of Cases. But the assumption that a committing magistrate would be involved highlights the basic difficulty in applying diversion schemes to cases with Aboriginal customary law aspects, that is, the problem of selection of the cases to which such a scheme should apply. Not all offences committed by Aborigines will be appropriate for diversion. Some cases come before the courts as a result of members of the local Aboriginal community deciding, for whatever reasons, that they wish the person to be dealt with by the court. Local dispute-resolving processes may have been exhausted or may not, in the circumstances, be available.

  • Due Process in Major Offences. It is the most serious offences against the general law (involving homicide or serious assault) that are most likely to involve Aboriginal customary laws, yet it is in respect of those offences that the ‘due process’ arguments against diversion, the problems of accountability and so on, are strongest.[58] A 1984 Northern Territory case highlights this difficulty. In R v Jacky Jagamara[59] the defendant was charged with murder. In 1979 he had stabbed another man in the thigh, severing an artery which resulted in the man’s death. He had been subject to severe traditional punishment which included being speared in the leg by the relatives of the deceased man on 3 separate occasions. He was a Pintubi, one of the last to ‘come in ‘from the desert in 1966. He had lived all his life in a tribal situation and spoke virtually no English. He first came before the court in 1979 charged with the killing, was given bail but did not appear for trial as a result of confusion about when the court was sitting. Five years later he was recognised from a warrant in Western Australia, where he was then living, and extradited to Alice Springs. Justice O’Leary sentenced him to imprisonment until the rising of the court, ie in effect to immediate release. He took into account that the defendant had no previous convictions and had been in custody over 13 weeks in relation to the offence. He stated:

It was an offence that was committed in an entirely tribal and traditional Aboriginal setting, and the prisoner has received very severe traditional punishment by way of pay-back at the hands of the deceased man’s family. In my opinion it is not an offence that calls for any deterrent or retributive punishment by this court. He is in no sense a threat to the community at large. There is no reason to fear he will offend again in this way in the future, and I think that in all the circumstances he ought not to be subjected to any further punishment beyond the severe punishment he has already received.[60]

It can be argued that little, if anything, is achieved by prosecuting in such cases, which involve time, effort and expense to the police, prosecuting authorities, the Aboriginal legal aid service, defence counsel, the accused and other witnesses. But such cases will usually involve serious offences, whereas the diversion schemes which have been attempted elsewhere and which (as with the West Auckland scheme[61]) appear to have been successful, have involved only minor offences, offences which are least likely to involve aspects of Aboriginal customary laws.[62]

  • Other Problems. There could also be difficulties, with a diversion scheme that focussed on customary law cases, of appearing to delegate or sanction local responses to the offender which may be outside the control of a magistrate or other official.[63] Moreover there is evidence that the relatively less common ‘major cases’ with customary law elements are capable of being resolved, to a substantial extent, through existing powers, especially sentencing powers.[64] For these reasons the Commission does not recommend a diversion scheme specifically for customary law cases. If a more direct form of recognition (beyond a combination of a partial customary law defence with prosecutorial and sentencing discretions) is desirable, it should take the form of a general customary law defence, leading to the complete exoneration of the defendant. Such a defence was rejected in Chapter 18.[65]

489. Pilot Diversion Scheme for a Wider Range of Cases? Nonetheless, as some of the overseas experience suggests, there are advantages to be gained from diversion schemes for more minor offences. These advantages include:

― reducing the degree of contact with the criminal justice system;

― breaking the common cycle of offence and imprisonment;

― recognising the role Aboriginal people may already play unofficially in dealing with offenders.

As the statistical material referred to in Chapter 17 indicates, much Aboriginal contact with the criminal justice system results from prosecution for minor or trivial offences.[66] There are also indications that existing ‘diversion’ or ‘conciliation’ pro grams within the wider community are reaching relatively few Aborigines.[67] One reason for this ‘under representation’ is no doubt the remoteness of some Aboriginal communities, but another and probably more important one is that these programs are essentially designed by and for members of the wider community. Successful schemes such as the West Auckland one are predominantly the result of local initiatives. Part VI of this Report discusses in more detail various proposals for local justice mechanisms in Aboriginal communities. The Commission recommends that careful attention be given, in the design and operation of any diversion or mediation schemes which may be established within the general legal system. to the involvement of concerned Aboriginal people, so as to make those schemes as relevant as they can be to Aboriginal offenders. It is a serious reflection on the criminal justice system that one of the few areas where Aborigines are under-represented in criminal justice statistics involves diversion schemes specifically established to reduce the impact of the system on young offenders or first offenders. Careful consideration should also be given to a trial diversion scheme specifically involving Aboriginal offenders, in particular, young offenders, if such a scheme is sought by any Aboriginal group or community.[68]

[32]cf ALC Ligertwood, Submission 104, (28 September 1978) 28 (proposing that there be a statutory duty upon the Commissioner of Police to consult with the local Council Chairman before commencing a prosecution, if the defendant has already been dealt with by a local community justice scheme, and not to prosecute unless the interests of justice clearly require it, having regard to action already taken).

[33]Canagarayar argues for a much wider concept of diversion, arguing that it should also include policies beyond the confines of the criminal law: JK Canagarayar, ‘Diversion: A New Perspective in Criminal Justice’ (1980) 22 Can J Crim 168.

[34]See eg FA Silas, ‘Service, not Trial’ (1984) 70 ABA J 34.

[35]For consideration of diversion in England see National Association for the Care and Resettlement of Offenders, Diversion from Criminal Justice in an English Context, Barry Rose, London, 1975; SR Moody and J Toombs, Prosecution in the Public Interest, Scottish Academic Press, Edinburgh, 1982, 67-75, 134-6. For Australia see eg T Syddall, ‘Pre-trial Diversion: A Magistrate’s Perspective’ in Potas (1984) 203. See also para 482-3.

[36]Law Reform Commission of Canada, Disposition and Sentences in the Criminal Process, Ottawa, 1976, 15-16. For comments of this Report see Canagarayar (1980); A Vining, ‘Reforming Canadian Sentencing Practices: Problems, Prospects and Lessons’ (1979) 17 Osgoode Hall LJ 355 esp 380-3.

[37]Canada LRC Studies on Diversion, Ottawa, 1975; see also Working Paper No 7, Diversion, Ottawa, 1975.

[38]So described because of the northerly latitude of the area involved, not because ‘high level’ offences were included in the scheme (they were not).

[39]Native Counselling Services of Alberta, ‘Creating a Monster — Issues in Community Program Control’, Paper presented at the Canadian Association for the Prevention of Crime, Winnipeg, July 1981, 5-6.

[40]Native Counselling Services of Alberta, Evaluation Report of the High Level Diversion Program, 1981, 5.

[41]‘Creating a Monster — Issues in Community Program Control’, 2.

[42]These were: causing a disturbance; common assault; theft under 200; taking a motor vehicle without consent; false pretences under 200; fraud (food and lodging); and mischief under 50. id, 11.

[43]id, 3.

[44]High Level Evaluation Report, 24-32. For an overall assessment see Native Counselling Services of Alberta, Final Report on the Demonstration Phase of the High Level Diversion Project 1977-81, Winnipeg, 1981.


[46]Submissions to the Penal Policy Review Committee by the Hoani Waititi Marae Committee, 20 June 1981, 17.

[47]See K Hazlehurst, ‘Community Care/Community Responsibility: Community Participation in Criminal Justice Administration in New Zealand’ in K Hazlehurst (ed) Justice Programs for Aboriginal and other Indigenous Communities, Australian Institute of Criminology, Canberra, 1985, 95; M Brown ‘The Te Atatu Maori Tribunal: Community Participation and Support of the Formal Court System, New Zealand’, id, 87. But for suggestions that a more radical solution an alternative criminal justice system for Maori people is needed see M Knowles, ‘A New Prosecution Policy’ [1982] NZLJ 133.

[48]Hoani Waititi Marae Committee (1981) 17.

[49]KM Hazlehurst, Submission 426 (7 June 1984) 4. See further para 801.

[50]Justice WAN Wells, Submission 17, (28 March 1977); C McDonald, Submission 162, (December 1980).

[51]cf Justice WAN Wells, Submission 17 (28 March 1977) 4, arguing that a policeman dealing with a conflict or dispute ‘should not be required to weigh the niceties of tribal custom’.

[52]id, 3-6.

[53]C McDonald, Submission 162 (December 1980) 21-2.

[54]See para 477.

[55]D Getches, Submission 218 (22 January 1981).

[56]See eg W Helmer, ‘Judicial Control of Prosecutorial Discretion in Pretrial Diversion Programs’ (1982) 31 Buffalo L Rev 909. For differing views about diversion schemes for juvenile offenders see J Crawford, Australian Courts of Law. Oxford University Press, Melbourne, 1982, 208 and works there cited.

[57]See para 487.

[58]There is, for example, no provision in force or proposed in Papua New Guinea which would require or even expressly provide for custom to be taken into account in the exercise of prosecutorial powers. cf Customs Recognition Act (PNG) s 7; and see para 405-8.

[59]Unreported, NT Supreme Court (O’Leary J), 24 May 1984.

[60]Transcript, 17. A week later in R v Charlie Limbiari Jagamara, Muirhead J sentenced a 75 year old traditional Aborigine to the rising of the court in similar circumstances. He commented:

There are some cases, I don’t necessarily say there are many of them but there are cases where I consider complete regard should be had for Aboriginal custom and tribal law. This is one …

Unreported, NT Supreme Court (Muirhead J) 28 May 1984, transcript, 21.

[61]See para 483, 484.

[62] cf para 394-400.

[63]For the difficulties which can occur with ‘delegation’ of traditional punishments see 512-16.

[64]This was true in R v Jacky Jagamara (para 487 n 59), in R v Claude, Raymond and Andy Mamarika (para 477), and in many other cases. See para 492-8.

[65]See para 442-453.

[66]These can be symptomatic of other problems which may be able to be avoided if dealt with appropriately and in good time: cf Syddall (1984) 210-11.

[67]cf para 682 (NSW Community Justice Centres). This appears to be true of juvenile aid panels, where these operate: see RJ Bailey, ‘A Comparison of Appearances by Aboriginal and Non-Aboriginal Children before the Children’s Court and Children’s Aid Panels in South Australia’ in B Swanton (ed) Aborigines and Criminal Justice, Australian Institute of Criminology, Canberra, 1984, 43, 71; F Gale & J Wundersitz, ‘Variations in the Over-representation of Aboriginal Young Offenders at each Level of the Criminal Justice System’ (1985) 20 Aust J Soc Issues 209.

[68]On the need for Aboriginal initiative and involvement cf para 805, 819, 868-72.