542. Recommendations in this Part. Accordingly, the Commission makes the following recommendations on the recognition of Aboriginal customary laws in the area of the criminal law and sentencing.
Intent and Criminal Law Defences
In the context of the present Reference, there is no special justification for changing existing criminal law ‘defences’ which contain an objective element (eg provocation, duress, self-defence and excessive self-defence) so as to eliminate the objective test, provided that the courts can take Aboriginal customary laws into account in determining what the response of a ‘reasonable’ person would have been in the circumstances (para 426, 429, 431).
Neither duress, coercion, mistake nor the defence of claim of right are generally applicable defences which would exonerate Aborigines who commit offences under the influence of their customary laws (para 430, 433, 435). Whether there should be such a direct defence is a separate question.
No special provision dealing with intoxication as an element in criminal liability is justified in the context of this Reference. However, the fact that a defendant was intoxicated should not necessarily exclude the application of other provisions recommended in this Part for the recognition of Aboriginal customary laws, in determining criminal liability (para 438).
Section 7(1)(b) of the Criminal Code 1983 (NT) should be kept under review, to ensure that it is not construed so as to bring about the conviction for murder of persons who lacked any intention to kill or do serious bodily harm at the relevant time (para 439).
Legislation should provide that Aboriginal customary laws and traditions should be able to be taken into account, so far as they are relevant, in determining whether the defendant had a particular intent or state of mind, and in determining the reasonableness of any act, omission, or belief of the defendant. Evidence to prove these questions should be admissible, a result which would be achieved by the general provisions proposed in this Report for the proof of Aboriginal customary laws (para 441).
An Aboriginal Customary Law Defence?
There is a distinction between a customary law defence applicable generally to offences of whatever kind, and a customary law defence to specific offences which are themselves a form of recognition of Aboriginal customary laws or of Aboriginal community authority. For example if it is sought to recognise land rights based on traditional Aboriginal occupation, it may also be appropriate to allow other persons to use the land provided their use is in accordance with or consistent with those traditions, and a specific customary law defence is one way of achieving this (para 446).
A customary law defence should not be available in cases of homicide or of life-threatening assault (para 447). Nor should a general customary law defence be available in other, lesser, cases. Problems of conflicts between the two laws are best dealt with in other ways (para 450).
A partial customary law defence should be created, similar to diminished responsibility, reducing murder to manslaughter. It should provide that, where the defendant is found to have done the act that caused the death of the victim in the well-founded belief that the customary laws of the Aboriginal community to which the defendant belonged required the act to be done, the defendant should be convicted of manslaughter rather than murder. The onus of proof in establishing these matters should lie on the defendant on the balance of probabilities (para 453).
Aboriginal Customary Law Offences
It is undesirable in principle, as well as impractical, to seek to codify Aboriginal customary laws as a basis for criminal liability (para 461) or to enforce those laws by way of a general mandate to the criminal courts (para 462).
In particular cases the ‘incorporation’ of Aboriginal customary laws as the basis for a particular offence may be desirable, especially to protect traditions, rules or sites from outside invasion or violation. Where problems arise, it is necessary to ask three questions:
· whether the matter can be adequately dealt with by the community under any by-law making powers, and whether any amendment or extension of these powers is needed;
· whether resort can or should be made to existing provisions under the general legal system;
· whether some additional specific measures of protection are required (para 462, 465)
Consideration should be given to amending legislation such as the Cemeteries Act (NT) s 21 to allow for burials in accordance with Aboriginal customary laws, particularly in relation to burials on Aboriginal land, but possibly elsewhere also (for example on pastoral land), provided relevant permissions are obtained (para 466).
Consideration should be given to enacting special measures to protect distinctive traditional designs and artwork (para 470).
Attention should be given by prosecuting authorities to the appropriateness of declining to proceed in certain cases involving customary laws (para 475). But the use of prosecution discretions is not a principal way in which Aboriginal customary laws should be recognised in the criminal justice system (para 478).
Prosecutorial discretions may be relevant 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 or she 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) are that the matter has been resolved and should not be pursued further;
· that alternatives to prosecution are available, eg a diversion procedure;
· that the broader public interest would not be served by engaging in legal proceedings (para 478).
These factors should be taken into account by police and prosecuting authorities in deciding whether to bring or maintain prosecutions in such cases, and they should be incorporated in prosecution guidelines at State and Territory level (para 478).
Formal diversion machinery, to divert offenders from the criminal justice system, is of limited relevance in customary law’ cases (para 488), though it may well be of value in the case of many minor offences occurring in or involving members of Aboriginal communities (para 489).
Careful attention should be given, in the design and operation of any diversion or mediation schemes which exist or which may be established, to make those schemes as relevant as possible to Aboriginal offenders.
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 an Aboriginal group or community (para 489).
Relevance of Aboriginal Customary Laws in Sentencing
Although the defendant’s (or the victim’s) consent to traditional Aboriginal dispute-resolving processes (eg spearing) is relevant in relation to bail, in sentencing and in prosecution policy, the recognition of Aboriginal dispute resolution processes involving physical punishments is not to be achieved through the existing law relating to consensual assault or through changes to that law (para 503).
The courts do already recognise Aboriginal customary laws in the sentencing of Aboriginal offenders, to a considerable degree. In considering reform, it is helpful to build on the existing experience in this field, where necessary reinforcing or elaborating on it (para 491-7, 504).
The courts have recognised a distinction, which in the Commission’s view is fundamental, between taking Aboriginal customary laws into account in sentencing, on the one hand, and incorporating aspects of Aboriginal customary laws in sentencing orders, on the other (para 504). In applying that distinction, the following propositions have been recognised:
· A defendant should not be sentenced to a longer term of imprisonment than would otherwise apply, merely to ‘protect’ the defendant from the application of customary laws including ‘traditional punishment’ (even if that punishment would or may be unlawful under the general law) (para 505).
· Similar principles apply to discretions with respect to bail. A court should not prevent a defendant from returning to the defendant’s community (with the possibility or even likelihood that the defendant will face some’ form of traditional punishment) if the defendant applies for bail, and if the other conditions for release are met (para 506).
· Aboriginal customary laws are a relevant factor in mitigation of sentence, both in cases where customary law processes have already occurred and where they are likely to occur in the future (para 507-8).
· Aboriginal customary laws may also be relevant in aggravation of penalty, in some cases, but only within the generally applicable sentencing limits (the ‘tariff’) applicable to the offence (para 509).
· Within certain limits the views of the local Aboriginal community about the seriousness of the offence, and the offender, are also relevant in sentencing (para 510).
· But the courts cannot disregard the values and views of the wider Australian community, which may have to be reflected in custodial or other sentences notwithstanding the mitigating force of Aboriginal customary laws or local community opinions (para 511).
· Nor can the courts incorporate in sentencing orders Aboriginal customary law penalties or sanctions which are contrary to the general law (para 512-13).
· In some circumstances, where the form of traditional settlement involved would not be illegal (eg community discussion and conciliation, supervision by parents or persons in loco parentis, exclusion from land) a court may incorporate such a proposal into its sentencing order (eg as a condition for conditional release or attached to a bond), provided that this is possible under the principles of the general law governing sentencing. Care is needed to ensure appropriate local consultation in making such orders, and flexibility in their formulation. In particular it is important that anyone into whose care the offender is to be entrusted, is an appropriate person, having regard to any applicable customary laws (eg is in a position of authority over him, and not subject to avoidance relationships), has been consulted and is prepared to undertake the responsibility (para 512).
· An offender’s opportunity to attend a ceremony which is important both to him and his community may be a relevant factor to be taken into account on sentencing, especially where there is evidence that the ceremony and its associated incorporation within the life of the community may have a rehabilitative effect. However initiation or other ceremonial matters cannot and should not be incorporated in sentencing orders under the general law (para 515).
The Commission endorses these principles which strike the right balance between the requirement that the courts cannot incorporate or require traditional punishments or other customary law processes to occur as a condition to the release of offenders or for the mitigation of punishment, and the need to take account of traditional Aboriginal dispute-settlement procedures and customary laws (para 516).
A general legislative endorsement of the practice of taking Aboriginal customary laws into account is appropriate. It should be provided in legislation that, where a person who is or was at a relevant time a member of an Aboriginal community is convicted of an offence, the matters that the court shall have regard to in determining the sentence to be imposed on the person in respect of the offence include, so far as they are relevant, the customary laws of that Aboriginal community, and the customary laws of any other Aboriginal community of which some other person involved in the offence (including a victim of the offence) was a member at a relevant time (para 517).
In addition it should be provided that, in determining whether to grant bail and in setting the conditions for bail, account shall be taken of the customary laws of any Aboriginal community to which the accused, or a victim of the offence, belonged (para 517).
A sentencing discretion to take Aboriginal customary laws into account should exist even where a mandatory sentence would otherwise have to be imposed (in particular, in murder cases) (para 522).
Related Evidentiary and Procedural Questions
Existing powers and procedures to call evidence or adduce material relevant to sentencing in Aboriginal customary law cases should be more fully used. These include in particular:
· the prosecution’s power to call evidence and make submissions on sentence (para 526):
· the use of pre-sentence reports (para 529).
Defence counsel should not be expected to represent the views of the local Aboriginal community or to make submissions on the relevance of Aboriginal customary laws contrary to the interests of or otherwise than as instructed by the accused (para 527).
Separate community representation is, in most cases, not appropriate (para 528).
To reinforce the need for proper information as a basis for sentencing, in cases where Aboriginal customary laws or community opinions are relevant, legislation should specifically provide 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 community, give leave to the applicant or applicants 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, or not dealt with in the statement) (para 531).
Other Sentencing Issues
There is no reliable evidence of discriminatory sentencing practices in cases involving Aborigines at Supreme Court or District Court level in recent years although more detailed studies, properly controlled for the many variables, are needed (para 533).
However the situation in some courts of summary jurisdiction (especially those staffed by justices of the peace) is different (para 534). Steps should be taken to ensure that justices of the peace sitting in ordinary courts of summary jurisdiction should no longer have power to imprison offenders, and that default imprisonment is not used as a device where imprisonment itself is not an available sentencing option (para 534).
Further attention needs to be given to associated problems of juvenile offending, and petrol-sniffing. However these are largely social problems, beyond the power of the criminal justice system to resolve (para 537).
Alternative sentencing options for Aboriginal communities need to be developed, taking into account local circumstances and needs, and especially in conjunction with local justice mechanisms presently in existence or established in the future (para 539-41). But extended gaol sentences should not be served in local lock-ups, nor should local longer-term gaols be built in an attempt to deter local offenders (para 536, 641).