18.08.2010
523. Evidentiary Issues. In considering how Aboriginal customary laws should be taken into account in sentencing. a number of evidentiary and procedural issues arise, some of which are dealt with in Part V of this Report. Chapter 24 discusses the proof of Aboriginal customary laws, through outside experts and through the evidence of Aboriginal people themselves. Chapter 25 discusses some problems which arise in taking Aboriginal evidence, including the questions of who has authority to speak on Aboriginal customary law matters, the taking of group evidence, the protection of Aboriginal secrets and a possible privilege against disclosing confidential or incriminating certain information. In Chapter 26 other methods of proof, such as the use of assessors or court experts, are considered. However one matter of particular relevance to sentencing is how Aboriginal community opinions can be determined and presented to the court.
524. Determining Local Community Opinions. In practice local Aboriginal community expectations, attitudes and opinions are taken into account to some degree in sentencing an offender from that community, and within certain limits this practice is desirable.[229] But an obvious difficulty which arises is how to determine these community expectations or opinions. Only in rare cases will there be an overall consensus in a community on the offence or the offender. In many cases only a limited number of people within the community will have a direct interest in the matter. Others will regard it as none of their business and will not wish to become directly involved. However, family, friends and kin of the offender and the victim (if there is one) will have a very real interest in the outcome of any proceedings. It has also been argued that the presence in court of members of the offenders family and community has the added effect of bringing ‘shame’ to the offender.[230] There may also be offences about which community leaders would wish to make their views known. Particular offences may have major repercussions for a community (for example if a community store or vehicle is vandalised or other important community facilities are interfered with in some way.[231]) What is articulated as ‘community opinion’ in these sorts of cases may involve clan leaders speaking on behalf of their clan either for or against a particular offender, or it may be an expression of generally held concerns about particular offenders. In the former case especially conflicts of interest and of opinion may exist. This is not an argument against attending to the views of members of the community, but it does demonstrate the difficulty that can arise in ascertaining what weight should be given to views that are presented. It is important that in relation to particular offenders the appropriate persons are consulted. The Galiwin’ku scheme[232] is an example of an attempt to ensure that the views of the different persons or groups concerned are presented to the court in an appropriate way. Clan leaders sit with the magistrate and give their views in court on the seriousness of the offence and the sentence that should be imposed. Background work is done by an anthropologist and Aboriginal field workers to ensure that the appropriate persons with the Aboriginal community have been consulted and are given the opportunity to come to court to present their views.
525. Adducing Evidence of Local Community Opinions. In the absence of a worked-out scheme of this kind, how are relevant community opinions to be presented to the court? Possibilities include:
a special role for the prosecution;
the preparation of a pre-sentence report (a procedure already in use);
separate community representation on sentencing;
presentation of evidence by the defence; and
statements made directly to the court by those concerned, at its request or by leave.
526. The Prosecution’s Role. It was concluded in para 510 that Aboriginal community views may be relevant in sentencing, whether or not they favour mitigation of penalty in the particular case. Where a defendant is legally represented, the defence can be left to call evidence and to make submissions in the accuser’s favour. But it can be argued that if Aboriginal community opinions are relevant more generally, then it should be a public responsibility to ensure that the appropriate material is presented. The prosecution is more likely to have the resources to be able to make enquiries. On the other hand it may be as difficult for the prosecution to present community views as for the defence to do so. The prosecution does not necessarily possess any special expertise to discover or represent local community opinions, and would need to acquire new skills and devote resources to carrying out this task. At a more general level there has been considerable controversy over the proper role of the prosecution in sentencing. The traditional view that only defence counsel should play an active role in making submissions on sentence is under challenge, and is inconsistent with the increasing scope of Crown rights of appeal on sentence. This general issue is a matter for this Commission’s final Report on Sentencing.[233] In the present context, it can at least be said that in appropriate cases the prosecution should call evidence and make submissions on sentence in relation to community opinion rather than stand mute in the face of assertions made by the defence.[234] But given the difficulties that can occur, and the distance (both geographical and, often, social and cultural) between the prosecution and the local community, this should not be the only way in which such evidence and submissions are presented.
527. A Role for the Defence. The possibility of conflict if defence counsel were to be required to present community opinions is much greater than for the prosecution. Defence counsel’s role is to present and interpret evidence in the most favourable light for the accused. It has been a common practice in some jurisdictions for assertions about the relevance of Aboriginal customary laws to sentencing, or about community opinions towards a particular offender, to be made from the Bar table without supporting evidence.[235] Such assertions would only be made if they were in the accused’s favour. Some Aboriginal communities have become disillusioned with Aboriginal Legal Service solicitors, after their views, given for presentation to the court, have in the client’s interests not been presented.[236] Some communities have also taken the view that being represented by Aboriginal Legal Service solicitors gives accused persons too great an advantage in court, and have directed that solicitors not represent clients from their community in relation to particular offences (eg ‘grog running’ under dry area legislation).[237] The reasons for maintaining the established role of the defence are, however, very strong. Defence counsel must, within the framework of the adversary system and the applicable ethical and legal rules, present the evidence which best supports the case of an accused person both in relation to the elements of the offence committed and on sentence. It is not appropriate to expect defence counsel to present community views which are adverse to their client’s interests.[238]
528. Separate Community Representation. Another suggested approach to presenting community opinion to the court is to allow the community to be separately represented by legal counsel.[239] This would avoid conflicts of interest for counsel representing the prosecution and the defence, and could assist in presenting community views to the court in a concise and orderly manner. However for most cases at least it is doubtful whether separate representation would work. The resources of Aboriginal legal services are already stretched in dealing with their ordinary defence role. It is questionable whether additional resources should be devoted to this new role, as distinct from other areas of need. Moreover a separate representative’s role as advocate would require that he or she be adequately briefed by those represented, yet in relation to ‘community opinion’ it is precisely the identification of those concerned which is at issue. The role of the ‘representative’ would be more to identify the relevant persons and views, through discussion and inquiry, than to represent them. Although there may be cases where separate representation, by leave of the court, is desirable,[240] for the reasons given these would be exceptional.
529. The Use of Pre-Sentence Reports.[241] Pre-sentence reports are an accepted procedure for presenting material to the court which allows the judge to be better informed on factors relevant to sentence. Such reports are usually prepared by probation and parole officers, although in cases involving separate Aboriginal communities it may be appropriate for someone else with knowledge of the community (eg an anthropologist) to prepare the report. One aspect that should be, and to some extent is already, covered in such reports in the case of offenders from Aboriginal communities is an assessment of the views of relevant persons within the community to the offence and the offender, as well as a reference to any cultural or traditional factors involved.[242] The advantage of this mechanism is that it already exists, and that its scope could be extended fairly readily. A pre-sentence report which expressed community attitudes would be a most useful adjunct to the views of witnesses from the community presented directly to the court. It may also provide insight into possible conflicts of interest among Aboriginal witnesses. One danger of presentence reports is that excessive weight may be attached to them. There may also be difficulties in seeking to distil into a short report the varied views within an Aboriginal community about the offender and the offence. These difficulties may be reduced if persons with appropriate anthropological or other training are recruited to carry out the task of preparing their reports.
530. Aboriginal Evidence or Submissions. None of the procedures referred to in para 526-529 should be excluded, although none is a complete solution to the problem. Apart from, or in addition to, pre-sentence reports, there are advantages in the direct presentation of Aboriginal evidence or submissions as a means of presenting community expectations or opinions to a court. In practice at present, witnesses are called on (especially but not exclusively in magistrates’ courts) to represent directly the views of their clan and other members of the community.[243] It is common practice for witnesses to be called during the sentencing phase of the trial to present views to the court on likely rehabilitation procedures, and to give character evidence, or evidence of the likelihood of any further local responses to the offence and of the likelihood of community participation in assisting the person back into community life. Strictly speaking much of this evidence is inadmissible, both because of its hearsay character and because of the rule that determining community views or expectations is a matter for the court, not for inquiry on evidence.[244] But the reasons for this exclusionary rule do not apply (or apply only to a very limited degree) in the case of separate Aboriginal communities,[245] as many magistrates and judges, who have permitted or encouraged material of this kind to be presented, have realised. Another possibility is to create a procedure for receiving unsworn statements from relevant persons. The Galiwin’ku scheme[246] in the Northern Territory is an example of this. Community views are not considered relevant in determining guilt but, as presented by persons directly in court, by community representatives sitting with the magistrate or as summarised in a pre-sentence anthropological report, they are taken into account when deciding on an appropriate sentence. This, like other examples of similar procedures, has been done administratively, without specific legislative provisions.[247]
531. Conclusion. As the Australian experience demonstrates, much can be done in this context through the use of existing powers and discretions. But to encourage these, and to reinforce the need for proper information as a basis for sentencing, in cases where Aboriginal customary laws or community opinions are relevant, it should be specifically provided that, where a member of an Aboriginal community has been convicted of an offence, the court may, on application made by some other member of the community or a member of the victim’s family or community, give leave to the person to make a submission orally or in writing concerning the sentence to be imposed for the offence. The court should be able to give leave on terms (eg as to matters to be dealt with in the statement). It should also be provided, as recommended in para 676, that the Court may adjourn to enable a pre-sentence report to be obtained from a person with special expertise or experience, in any case where Aboriginal customary laws or traditions are relevant in sentencing. These provisions should not limit other powers of the court.