667. Experiments in Australian Courts. In some respects assessors perform a similar role to expert witnesses, but there are important differences between the two. Expert witnesses are selected and called by a party, and are subject to cross-examination. Assessors are appointed by the court, and are not subject to cross-examination. They are not decision makers but act in an advisory capacity to the judge or other tribunal of fact, and the parties are usually precluded from calling expert evidence on a matter where assessors have been appointed to advise on that matter. Assessors are used rarely in common law jurisdictions although they may play a role in a number of specialist areas, perhaps the best known being admiralty.[840] Assessors were also extensively used in the British colonies in Africa and elsewhere, and they still operate in a number of these countries. They are required in all cases punishable by death or more than five years imprisonment in Western Samoa.[841] Papua New Guinea has recently made provision for assessors in both civil and criminal cases in the National Court.[842] It has often been suggested that assessors should sit with and advise judges in cases which involve aspects of customary law. In fact courts in Australia have at times used Aboriginal assessors. Thus in Western Australia between 1939 to 1954 there was provision for Courts of Native Affairs to be convened on an ad hoc basis to try natives for offences committed against another native. The court was empowered to call to its assistance the head man of the tribe to which the accused belonged, and could take into account in mitigation of punishment any tribal custom which was an element of the offence.[843] In more recent times, some magistrates in the Northern Territory, South Australia and Western Australia have adopted the practice of hearing criminal cases in the presence of a group of local elders who have in effect acted as assessors, especially on sentencing issues. These practices go beyond the use of assessors for evidentiary purposes, and are an attempt to incorporate Aboriginal decision-making structures within the lower court system, or even to delegate limited law and order powers to local groups. They are accordingly dealt with in Part VI of this Report, in the context of local justice mechanisms.[844] An alternative proposal, which is closer to the use of assessors in the more limited evidentiary way, was made by the South Australian Aboriginal Customary Law Committee. The Committee proposed an Office of Customary Law Adviser to report to a court hearing criminal charges with Aboriginal customary law elements. The report would include information such as the following:

  • A general description of the communities involved.

  • The kinship relations of the defendant, and those otherwise concerned with the case.

  • The role of custom in determining the defendant’s action.

  • An account of obligations binding the defendant in relation to the alleged offence, and the probable conduct of the defendant in a purely traditional context.

  • An account of non-traditional elements and aspects relevant to the allegations and/or indictment.

  • Details of the defendant’s previous offences, and, if appropriate, his school, work and personal history.[845]

Before considering the use of assessors in such situations, it is instructive to outline the provisions for Aboriginal assessors in the NSW Land and Environment Court, the role of consulting anthropologists in Australian land claims, and the use of assessors in proving customary law in other jurisdictions.

668. Assessors in the NSW Land and Environment Court. The NSW Land and Environment Court, established in 1979, is unique among Australian courts in having extensive provision for assessors, who conduct preliminary inquiries and may make decisions themselves in certain matters, and in some other matters sit with and advise the judge.[846] The court is given important powers under the Aboriginal Land Rights Act 1983 (NSW). These include:

  • appeals from a Minister’s refusal to grant a land claim (s 36(6)-(7));

  • granting or refusing approval in certain cases to mining operations or Aboriginal land (s 45(8));

  • granting access permits for traditional hunting, fishing or gathering rights (s 48);[847]

  • hearing disputes between or within Aboriginal Land Councils, where these are referred to the Court by the Registrar (s 59).

In the case of the first 3 of these, the Court is required to sit with 2 assessors, appointed under s 12(2)(g) of the Land and Environment Court Act 1979 (NSW) as persons (not necessarily Aborigines) with:

suitable knowledge of matters concerning land rights for Aborigines and qualifications and experience suitable for the determination of disputes involving Aborigines.[848]

In the case of the fourth, the jurisdiction over ‘Aboriginal disputes’ under s 59 of the Aboriginal Land Rights Act 1983 (NSW), with certain exceptions this can only be exercised by an ‘Aboriginal’ assessor. sitting alone without a judge.[849] It is too early to assess how successful the use of assessors under these provisions will be.

669. The Land Claim Experience. The practice of the Aboriginal Land Commissioner in appointing a consultant anthropologist in respect of each claim commenced in the first claim[850] and has been followed since. The consultant anthropologist has a responsibility to advise the Land Commissioner on the interpretation of the anthropological evidence, and has in some cases cross-examined anthropological witnesses.[851] This extensive use of anthropologists seems to have been most successful, and is a good example of the use that can be made of experts as assessors. However what is appropriate for a wide-ranging hearing such as a land claim will not necessarily be appropriate in adversarial judicial proceedings.

670. The Role of Assessors in Customary Law Cases Abroad. The use of assessors developed from the need to inform non-native magistrates and judges about local conditions and customary laws or traditions. O’Regan gives a general description of the way in which assessors work:

The system varies from country to country because of differences in legislation, case law and judicial practice but the following summary is typical. Residents aged between, say, twenty-one and sixty who can speak and understand English are liable to serve as assessors unless disqualified or exempted … Lists of eligible assessors are prepared by district officials and from these lists the Chief Justice or the Registrar of the Supreme Court selects assessors to serve at specified sittings of the Court. Those chosen are summoned to attend the sittings and the presiding judge then selects several of them — usually three — to sit with him for each trial. The judge’s choice may be challenged for good cause — for instance that the prospective assessor is closely related to a Crown witnesses or for other reasons might be prejudiced toward the accused. The assessors finally accepted sit with the judge, hear all the evidence — asking questions of witnesses if they wish — and the judge then sums up the evidence to them, relating it to the relevant law and asks each assessor for his opinion on any matter pertaining to native custom and on the general issue of the guilt or innocence of the accused. Each assessor then gives his opinion individually in open court and states the reasons on which his opinion is based. In most jurisdictions these opinions are advisory only. The judge does not have to accept them. He alone finally decides what the verdict of the court should be.[852]

It is often suggested that assessors are one of the best ways of informing judges of customary law matters and of local conditions generally.[853] According to O’Regan:

The system has certain obvious advantages. Firstly, it helps the judge. It gives him the benefit of expert advice on matters relating to local custom. It should assist him in setting the evidence in its social context when the crime alleged stems, as many do, from land disputes, fear of sorcery or the inexorable rule of the payback. It may be particularly helpful when defences such as provocation, mistake of fact and self-defence are raised. Secondly, as a famous English judge, Lord Atkin, said speaking of the assessor procedure in Africa, ‘it operates … as a safeguard to natives accused of crime, and a guarantee to the native population that their own customs and habits of life are not misunderstood’. It involves the local people significantly in the judicial process at the highest level.[854]

On the other hand, there is the danger that this information may be partial or wrong, and unless ‘the assessor’s opinions are given publicly and are subject to cross-examination, the parties will have no opportunity to correct them:

Assessors … are not called by the parties, are not sworn, and cannot be cross-examined. Indeed their advice is both sought by and given to the court in private and is only disclosed to the parties at the court’s discretion and then usually at the end of the case in the judgment[855]

A rule was accordingly developed which prevented assessors from communicating new information to the judge, as distinct from commenting on the evidence. But the distinction is a difficult one to apply, especially where the ‘new information’ is of particular relevance to the case. In relation to native assessors the question whether the advice of native assessors should be given to the judge in private or in open court was considered by the Privy Council in Mahlikilili Dhalarnari v R.[856] That case involved an appeal against conviction because two administrative officers and the native assessor had given their opinions to the judge in private. The Privy Council considered this a ‘substantial and grave injustice’. Lord Atkin said:

It was suggested that so far as the native assessor was concerned if his opinion had to be given in public he might feel constrained to decide in favour of a native accused, whereas, in the privacy of the judge’s room and in company only the judge and the administrative officers he would be more likely to give an honest independent opinion … Their Lordships cannot accept this contention … It must … be remembered that the provision for giving the judge, at his request, the assistance of a native assessor cannot be regarded solely from the point of view of aid given to the judge. It operates, and no doubt is intended to operate, as a safeguard to natives accused of crime, and a guarantee to the native population that their own customs and habits of life are not misunderstood. From this point of view the importance of publicity is manifest.[857]

But if the advice is to be given in public, the need for the parties (and especially the defendant in a criminal case) to be able to correct or question it is clear, and could not be regarded as met by a right to question an assessor’s advice on appeal. Apart from other difficulties with such a procedure, it could in important respects convert the appeal into a rehearing of material which the parties had had no previous opportunity to deal with or refute.

671. Difficulties with Assessors. Other concerns and questions have been raised with respect to assessors, both generally and in the present context. These include:

  • whether the assessor should deal comprehensively with the background to an offence, the proper sentence and so on, or should merely comment on the evidence presented;

  • the danger that the mechanism of assessors provides too limited a role for indigenous people, given that assessors can only advise and not decide with respect both to guilt or innocence and sentence;

  • whether an Aboriginal assessor would be available in cases involving only Aborigines or also in ‘mixed’ cases;

  • whether assessors should be available in criminal as well as civil cases, and if so, what implications there would be for the trial by jury; and

  • the danger that information provided by assessors may be wrong or misleading and that no other evidence has been called to refute it. While it has been held that expert evidence cannot be called on matters falling within the special skill or experience of a nautical assessor,[858] the African practice has been to call witnesses with expertise on native custom and to ask assessors to determine the weight to give to it. However, as has already been pointed out, this is a difficult distinction to draw.

The administrative and other difficulties in setting up an assessor system must also be considered. These include the method of choosing suitable assessors, maintaining lists of assessors to ensure that an assessor will always be available when needed by the court, and the costs of an assessor system, including travelling and other costs. But the fundamental objection to assessors is that the appointment of an assessor offends against the principle of allowing cross-examination wherever possible. The assessor’s views are unchallenged and, especially if given in private, unchallengeable. Accordingly the tendency in Australia is to reject assessors in general legal procedure.

672. Assessors and the Proof of Aboriginal Customary Laws. While the assessor system has a long and apparently successful history in Africa and elsewhere, there are a number of objections to adopting it as a specific method of proving Aboriginal customary laws. In Chapter 28, different Aboriginal ways of resolving disputes based on kin responsibilities and obligations are discussed. In such disputes, different persons not directly involved will be called upon to play different roles. In small communities all members will have varying degrees of involvement, and all will have some interest in the outcome. This would make it difficult, if not impossible, for a court to appoint an assessor who might be regarded as objective or uninterested (assuming that this is to remain a prerequisite). Even if this is not regarded as a bar, an individual from the community may be very reluctant to express views about a matter in a public forum. In Aboriginal terms the dispute may be ‘none of his business’, certainly not one which he should speak about in court.[859] In some cases several persons would need to express opinions because of their various relationships to the accused or the role they should play in resolving a dispute. A case in point was R v Isobel Phillips, in which 4 Aboriginal women were permitted to give evidence jointly.[860] All took separate oaths, but gave evidence together, each answering questions relating to the offence and its customary basis in accordance with their relationship with the accused. The taking of group evidence in this manner is to be preferred to the use of assessors.

673. Outside Assessors as Customary Law Experts. The alternative, that is, choosing someone as an ‘expert’ assessor from outside the community, also appears inappropriate, even if the person was from the same language group or had previously resided in the community. Such a person may be able to express some general views, but would not be likely to have detailed knowledge of the circumstances surrounding a particular offence. The characteristics of most Aboriginal disputes would mean that maintaining a formal list from which the court could select an assessor as needed would not be workable. This problem could perhaps be overcome if the community had some collective responsibility for selecting an assessor or assessors to assist the court. But the modalities of selection would present problems[861] existing bodies such as community councils would not necessarily be appropriate nominating bodies, and it would be cumbersome and ineffective to establish special bodies for such a limited purpose. If on the other hand the aim was to select an anthropologist, or a social scientist from another discipline, with relevant experience, there is no clear indication that such experience and insight can not be applied through the ordinary adversary process. The kind of information which the court requires would, in most cases at least, be accessible in the ordinary way, with the aid of the evidentiary reforms suggested in this Part. Perhaps the greatest difficulty occurs in relation to sentencing, where the range and scope of relevant information is considerably greater than in most areas of substantive law.[862] Even here, however, community views could be presented as evidence by persons chosen by the community, and relevant information, including information about Aboriginal customs and practices relevant to sentencing, can be presented in the same way as other evidence, or through a pre-sentence report.[863]

674. Conclusion. It needs to be stressed again that the question here is the limited one of how best to provide information to a court dealing with a customary law issue. It is not the broader issue whether Aboriginal groups should exercise autonomy over matters of local law and order.[864] In this limited context, the nature of Aboriginal customary laws (including the kinship system) appears to create major obstacles to the appointment of ‘Aboriginal assessors’, at least in the context of the matters discussed in this Report. There has been little or no demand for Aboriginal assessors to be appointed, and it is suggested that the information which a court is likely to need is not of a kind usually provided by assessors. The system of assessors also has the potential for un necessary intrusion into the operation of Aboriginal customary laws. It is preferable that there be greater reliance on Aboriginal evidence, including group evidence, and on expert evidence. For these reasons a formal system of assessors is not recommended.