677. Recommendations in this Part. Accordingly, the Commission makes the following recommendations on the recognition of Aboriginal customary laws in the area of evidence and procedure.
Police Investigation and Interrogation
To the extent that the general law of police interrogation does not provide equivalent safeguards, there need to be special rules protecting Aboriginal suspects under police interrogation, to help ensure the reliability and voluntariness of confessions or admissions made (para 561-3).
These rules should apply to all Aborigines whose difficulties of comprehension of their rights under interrogation, and of the meaning of what is said, warrant such protection (para 565). This is to be achieved by focussing on whether the suspect genuinely understood the caution and the questions, and was not merely deferring to authority in the answers given. No separate test based on ‘disadvantage’ is necessary (para 565).
Admissions or confessions obtained in consequence of a contravention of the interrogation rules should not be admissible unless the court is satisfied that, in the circumstances, the suspect:
· understood the caution (ie, understood that there was no requirement to answer questions and that any answers might be used in evidence)
· understood the nature of the questions put
· did not answer merely out of deference to authority or suggestibility (para 565, 570).
The interrogation rules should require the presence of a prisoner’s friend when a suspect is in custody or is being interrogated in respect of a serious offence. There should be a preference for a prisoner’s friend who has been nominated by the local Aboriginal legal aid organisation or who is a barrister or solicitor. If no such person is reasonably available, then a prisoner’s friend may be another person chosen by the suspect. The prisoner’s friend should not be a police officer, an accomplice in the suspected offence, or a person the police reasonably believe should be prevented from communicating with the suspect (eg with a view to destroying evidence or intimidating a witness) (para 568).
The interrogation rules should require notification of an Aboriginal legal service in cases where the suspect is in police custody or where the offence in question is a serious one, unless interrogation is necessary without delay to avoid danger to persons or serious damage to property or unless the prisoner’s friend present is a lawyer or Aboriginal legal service nominee (para 569).
The interrogation rules should also apply to admissions given in the course of other investigatory steps (such as re-enactments or identity parades) which require the presence and co-operation of the suspect, but they should not prevent the admission of material evidence (para 571).
Waiver ought not to be a separate aspect of the rules (para 572).
The basic interrogation rules should be stated in legislation together with the associated admissibility rule (para 573).
No specific change is recommended (para 577), apart from the use of existing procedural powers in particular cases to avoid specific difficulties which may arise (para 578).
Fitness to Plead
Legislation should provide that, in a criminal proceeding against an Aboriginal defendant who appears not to be fluent in English, the court should not accept a plea of guilt unless it is satisfied that the defendant sufficiently understands the effect of the plea, and the nature of the proceedings. If necessary, the court should adjourn the proceedings to allow legal’ advice or an interpreter to be provided, to assist in explaining the plea and its effect (para 585).
Aborigines and Juries
No special provision excluding jury trial for Aborigines is justified (para 589).
Attention should be given to jury selection procedures (including the preparation of jury-rolls) to help ensure that a multi-racial society is better reflected in the composition of juries. But there should be no specific requirement of Aboriginal representation on juries where Aboriginal defendants are on trial (para 594).
The court should have power, on application by a party before the jury is empanelled, to make appropriate orders to ensure that a jury of a particular sex is empanelled, where under Aboriginal customary laws evidence to be given in the case can only be given to persons of that sex, the order is necessary to allow the evidence to be given, and having regard to other relevant matters (including other evidence to be given) the court considers the order should be made (para 595).
Existing programs for the training and accreditation of Aboriginal interpreters should be supported and extended. The aim should be to ensure that interpreters are available where needed at all stages of the criminal justice process (ie during police interrogation, as well as in the courts) (para 600).
Legislation should provide that an Aboriginal defendant may give unsworn evidence unless the court finds that the defendant is not disadvantaged in relation to the giving of evidence in the proceeding, having regard to any relevant condition, characteristic or disability of the defendant, and whether for this reason the defendant is likely to be unfairly prejudiced by cross-examination (para 604).
This provision should not apply if the defendant is otherwise entitled to make an unsworn statement in the proceeding in question (para 604).
The statement should be made by the defendant personally, or be given by counsel on his or her behalf. Counsel should be able to remind the defendant of any other matter which should be referred to in the statement (para 604).
The prosecutor should not be permitted to comment on the defendant’s choice to give unsworn evidence, and any comment made by the judge should not suggest that that choice was made because the defendant believed he or she was guilty, or that unsworn evidence is necessarily less persuasive than sworn evidence (para 605).
In order to resolve any doubts about the law it should be declared that dying declarations made by Aborigines shall not, by reason of their adherence to traditional beliefs, be held inadmissible on grounds of any lack of belief in a religious sanction or supernatural judgment (para 576).
Proof of Aboriginal Customary Laws
Legislation should provide that evidence given by a person as to a matter of Aboriginal customary laws or traditions is not inadmissible on the grounds that it is hearsay or opinion evidence if the person giving the evidence —
· has special knowledge or experience of the customary laws of the community in relation to that matter; or
· would be likely to have such knowledge or experience if such laws existed.
It should also be stated that such evidence is admissible, notwithstanding that the question of Aboriginal customary law is the issue or a substantial issue in the case (pare 642).
Aboriginal Witnesses: Group Evidence and Authority to Speak
Lawyers, judges and administrators should be aware of problems for some Aboriginal people arising because under Aboriginal tradition they lack authority to speak, or to speak alone, on a particular matter (para 645).
Courts and tribunals should be given express power to allow two or more members of an Aboriginal community to give evidence pertaining to the customary laws of that community together, where this is necessary or desirable (para 648).
Secrecy, Confidentiality and Aboriginal Customary Laws
Legislation should confer specific power to hear evidence in camera, to exclude certain persons (eg members of the opposite sex to the witness) from the court or to take other steps to protect secret information, where this is necessary, on the balance of relevant considerations, in the interests of justice (para 656).
There should be an express exemption in the Sex Discrimination Act 1984 (Cth) for acts done, and judicial, administrative or other restrictions imposed on the giving of information which relates to the religious, ritual or ceremonial life of Aboriginal communities in accordance with their traditions, as well as for customary law restrictions on entry to land for particular purposes (para 470, 656).
The courts should have express power, where necessary, to protect confidential communications or records relating to the customary laws of an Aboriginal community. In some circumstances it may be necessary for the court to exclude certain evidence altogether. Before doing so the court should be required to weigh the likelihood of harm to interested persons, to the Aboriginal community concerned, and to any confidential relationship or class of such relationships, against the importance of the evidence, by whom it is called and the nature of the proceeding (para 661).
There should be no special class of anthropologist-informant privilege (para 661).
Privilege against Self-Incrimination
The courts should be given power to excuse a witness from answering a question which tends to incriminate the witness under his or her customary laws. This power should be exercised unless the court finds that the desirability of admitting the evidence outweighs the likelihood of harm to the witness, to some other member of the Aboriginal community concerned, or to the Aboriginal community itself (pare 665).
Assessors’ Court Experts and the Proof of Aboriginal Customary, Laws
No special provision should be made for assessors, or court experts, to assist in the proof of Aboriginal customary laws (para 672-5).
Legislation should expressly confer power on the court to adjourn to enable a pre-sentence report to be obtained from a person or persons with special expertise or experience, in any case where considerations of Aboriginal customary laws or traditions are relevant in sentencing (para 676).