24. The Proof of Aboriginal Customary Laws

It is of course a fact, and one that cannot and should not be disregarded, that the appellant did suffer serious injuries at the hands of other members of the community. But, if it is to be asserted that conduct of this sort should be seen as a reflection of the customary law of an Aboriginal community or tribal group … there should be evidence before the Court to show that this was indeed the case and that what happened was not simply the angry reactions of friends of the deceased, particularly when the killing of the deceased and the injuring of the appellant occurred at a time when some, if not all, of those participating had been drinking.[569]

The question of customary compensation to be taken into account on sentence must be clearly identified in each case … The concept of customary payment must be clearly proven and its relationship to the concept of penalty … There must be a proper evidentiary basis upon which the Courts can develop the law. This is significant in this country where there are many different customs. General statements by counsel can no longer be considered sufficient.[570]

614. The Importance of Proof. Under the present law the existence and content of Aboriginal customary laws, where these are relevant for any purpose, are essentially questions of fact and not of law.[571] Similarly under the Commission’s proposals it will be necessary for a party to a case who relies upon Aboriginal customary laws in some way to prove the relevant rule or proposition. This and the succeeding chapters of this Part examine whether the rules of evidence relating to proof of Aboriginal customary laws are satisfactory, or whether amendment or clarification of those rules is desirable. This question is of considerable importance. If the recognition of Aboriginal customary laws in any field is to be successful, information about those laws must be available. Decisions based on assertions or assumptions about Aboriginal customary laws which are unproven may lead to mistaken or ill-informed decisions, which can do considerable harm.

615. Problems with the Common Law. The common law rules concerning proof of local customary laws are dealt with in this Chapter. The central difficulty they present arises from the distinction between matters of fact and matters of opinion and from the courts’ insistence on first-hand evidence based on personal knowledge of matters of fact. Matters of opinion, as distinct from fact or personal experience, can only be testified to by ‘experts’ and it is not clear whether persons lacking formal educational qualifications in a relevant discipline can be regarded as experts. If the common law rules were to be strictly applied to the proof of oral traditions and customs (which are usually classified as matters of opinion rather than fact) then it could be that the evidence of Aborigines initiated into and familiar with their laws and traditions would be inadmissible. In the leading Australian case on the point, Milirrpum v Nabalco Pty Ltd,[572] this result was avoided, but only by applying the rule about reputation evidence, an exception to the common law rules applicable in the special circumstances of that case, but one which would not be generally applicable.[573]

616. Other Issues Distinguished. It is necessary to distinguish the proof of Aboriginal customary laws in Australian courts from several related problems, which are dealt with elsewhere:

  • the expression of Aboriginal community opinions or sentiments in sentencing, discussed in Chapter 21;[574]

  • the application of Aboriginal customary laws and community views in the settlement of disputes through local justice mechanisms, if these are established in some form, discussed in Part VI of this Report;

  • the proof of facts relating to standards of living (eg health or housing) in Aboriginal communities, where this is relevant, eg in custody cases or in sentencing.[575]

In this section