70. Judicial Responses. With their day-to-day experience of the difficulties and the potential for injustice that can arise in applying the general law to traditionally oriented Aborigines, the courts have sometimes been able to reduce the effects of non-recognition. Thus some judges, confronted with the reality of Aboriginal adherence to different and often conflicting rules or values, have attempted to refine or mitigate the general law’s basic non-recognition of those rules and values. This continues to occur in a variety of ways. These include taking customary laws into account in determining sentence, and in the application of established defences such as provocation, duress and claim of’ right. Courts have been prepared to recognise that loss of traditional status and privilege may constitute compensable injury in road accident cases. There has been one instance in which a traditional marriage was recognised for the purposes of adoption legislation’. Rules establishing special interrogation rules to protect some Aboriginal defendants have also been enunciated or accepted by some courts.
71. Sentencing Discretions. The exercise of judicial discretions to take into account customary law in mitigation of sentence was supported by the House of Commons Select Committee on Aborigines and by Governor Grey in the 1830s and has continued to occur. In the last decade there have been many cases, especially in the Supreme Courts of the Northern Territory, South Australia and Western Australia, where Aboriginal customary laws have been regarded as relevant in sentencing. These cases, and the principles underlying them, will be discussed in Chapter 21 of this Report.
72. The Substantive Criminal Law. There have also been cases where Aboriginal customary law and traditions have been claimed to be relevant to the determination of criminal responsibility. For example an Aboriginal defendant may have been affronted by the disclosure of tribal secrets, or the use of certain prohibited words. These acts, while regarded as particularly serious by many Aborigines, may be treated as unimportant by non-Aboriginal Australians. The House of Lords held in Bedder v DPP that for the defence of provocation to be established, it was necessary both that the defendant actually lost his self-control and that the circumstances were such that a reasonable man, with no physical or mental peculiarities or specific cultural background, would have lost his self-control. On this basis the defendant’s cultural background would be considered a peculiarity of the accused and irrelevant to the question of provocation. Despite this decision, Justice Kriewaldt was prepared, in a series of Northern Territory decisions in the 1950s, to take account of the defendant’s Aboriginality in such situations. The courts took account, for example, of the fact that an Aboriginal defendant had been provoked by the uttering of prohibited words, or by the disclosure of tribal secrets. This approach has since been followed and extended, in Australia and elsewhere. It is likely that a similar approach would be taken in determining the reasonableness of acts under other criminal law defences (for example duress).
73. Compensable Injury. In several cases, courts have held that loss of traditional status, which may result from brain damage or other incapacity, could be included in assessing damages in road accident cases. In Napaluma v Baker, the plaintiff had begun to undertake the traditional ceremonies of the Pitjantjatjara people and had been initiated. In assessing damages for loss of amenities resulting from the injuries, Justice Zelling said:
… in the ordinary course of events, further secrets would be entrusted to him and he would, in our parlance, rise to higher degrees. It is now certain that the plaintiff will not be advanced to further degrees in Aboriginal lore for two reasons, firstly, he may not keep secret what is entrusted to him, and secondly, he has not the ability to pass on accurately the secrets to others. Accordingly, he is left out of some ceremonies and he plays a merely minor passive role in others and he is therefore less than a full member of the Aboriginal community. He will not play the part in relation to reciprocal relationships with other Aborigines of his own peer group, nor will he be consulted, at least not as much as others, in making tribal decisions. I feel that this position may worsen after his father’s death. At the moment his father is an Aboriginal of high degree within the tribe. He looks after the plaintiff and as long as his father is present I have no doubt that that will shield the plaintiff from much of his disabilities within tribal life. That may well not be so, or at least be so to a less degree, when his father dies.
Napaluma v Baker was followed in the Northern Territory case of Dixon v Davies. Loss of the ability to participate in ceremonies has also been taken into account in assessing damages for assault. It is true that such decisions can be regarded as only an application, in the particular circumstances of the case, of the general principle that the plaintiffs actual loss is to be assessed in quantifying damages. They are nonetheless a judicial recognition of the value attributed to traditional Aboriginal ways of life.
74. Traditional Marriage: A Northern Territory Decision. In an unreported decision in 1981, Chief Justice Forster of the Northern Territory Supreme Court declined to take the view that a tribal marriage did not count as a marriage for the purposes of an adoption. He held that the reference to ‘husband and wife jointly’ in the legislation included Aborigines living a traditional life who had been traditionally married according to tribal custom and who felt bound by that custom. Other decisions on similar questions have not been uniform. Either the court has concluded that traditional marriages could not be recognised or existing common law rules (eg the presumption of marriage on cohabitation) have been manipulated to achieve a just result. The general question of the recognition of traditional marriages is discussed in Part III of this Report.
75. Interrogation Rules. It is not only at the substantive and sentencing levels that non-recognition of Aboriginal customary laws and traditions can cause injustice. Aboriginal people, and particularly more traditionally oriented Aborigines, are, because of language difficulties, differing concepts of time and distance, cultural differences and other problems, at a considerable disadvantage when interrogated by police. In recognition of this, Justice Forster (as he then was) established certain guidelines for overcoming these disadvantages in Anunga’s case. What have come to be called the Anunga rules require:
an interpreter to be present if the suspect is not fluent in English;
the presence of a ‘prisoner’s friend’;
great care in administering the caution (right to silence) and ensuring that it is understood;
reasonable steps to obtain legal assistance if requested;
the provision of substitute clothing and basic refreshments if needed;
no questioning while the suspect is ill, drunk or tired.
As Justice Forster explained:
It may be thought by some that these guidelines are unduly paternal and therefore offensive to Aboriginal people. It may be thought by others that they are unduly favourable to Aboriginal people. The truth of the matter is that they are designed simply to remove or obviate some of the disadvantages from which Aboriginal people suffer in their dealings with police.
Similar special rules now exist in some other Australian jurisdictions and have been endorsed by the Federal Police and by Police Departments in some States. The extent to which such rules are necessary as a recognition of the characteristics of traditionally oriented Aborigines when under police interrogation, will be discussed in Chapter 22 of this Report.
See para 58.
See para 72.
See para 73.
See para 74.
See para 75.
See para 43-4.
 2 All ER 801.
eg R v Patipatu  NTJ 18; R v Muddarubba  NTJ 317.
R v Sydney Williams, reported on another point (1974) 14 SASR 1. See para 493.
See esp DPP v Camplin  AC 705; Mofja v R (1977) 13 ALR 225. And see further para 421-7.
(1982) 29 SASR 192.
(1982) 17 NTR 31 (O’Leary J).
Roberts v Devereux, unreported, NT Supreme Court (Forster CJ) 22 April 1982.
Adoption of Children Act 1964 (NT) s 12.
See para 276.
Police v Ralph Campbell, unreported, NT Court of Summary Jurisdiction (Mr J Murphy SM) 8 June 1982. See para 315.
R v Pilimapitjimiri, ex parte Gananggu  NTJ 776.
See Chapters 13-14.
R v Anunga (1976) 11 ALR 412.
 id, 415.
See para 549-60.
See para 546-73.