Rees, Neil --- "R v Joseph Murphy Jungarai (Bail-Accused committed for trial on a charge of murder-Evidence of Intended punishment under Aboriginal customary law)" [1981] AboriginalLawB 9; (1981) 1(1) Aboriginal Law Bulletin 8

• R V Joseph Murphy Jungarai
• Bail-Accused Committed For Trial On A Charge Of Murder-Evidence Of Intended Punishment Under Aboriginal Customary Law.

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R v Joseph Murphy Jungarai

Bail-Accused committed for trial on a charge of murder-Evidence of Intended punishment under Aboriginal customary law.

R v Joseph Murphy Jungarai

Supreme Court of the Northern Territory at Alice Springs (Forster CJ)

5, 10, 11 & 23 June 1981

Casenote by Neil Rees

The accused was charged with the murder of Eric Jackson at Tennant Creek on 16 February 1981. He was committed for trial on 22 May 1981 and bail was refused. Application for bail was made to the Supreme Court. Three relatives of the accused and a white anthropologist were called to give evidence in support of the application. The court was told that there was a strong feeling among Aboriginal people at Tennant Creek about the death of Eric Jackson. It had been determined, according to customary law, that the accused should suffer pay-back. Relations among the various Aboriginal families involved would be strained until the pay-back took place. There was a strong possibility that the family of the accused would have to suffer the pay-back if the family of the deceased were unable to deal with the accused man. The pay-back was likely to be a spearing in the leg and banishment for a considerable period of time. On 11 June 1981 Forster CJ ordered that the accused be released on bail on his own recognizance of $500 together with one surety in a similar amount. Reasons for this decision were delivered on 23 June 1981. After outlining the facts of the case Forster CJ stated

Whatever may be the defences available to the accused under the law of the land and whether the appropriate verdict after the trial may be guilty of murder, guilty of manslaughter or not guilty, it is plain that according to Aboriginal law and custom the accused is held responsible for Jackson's death and must accordingly be punished. The precise tribal punishment appropriate for the accused is not absolutely certain but the strong probability is that it will consist of a single ceremonial spearing in the leg followed by banishment into the bush for a period to be fixed in order to remove from the community a possible focus for trouble. The women concerned have already been dealt with by being beaten with sticks. The precise reason for their punishment is not clear but I am satisfied that custom and law required it.

The extended families of the deceased and the accused are in a state of mutual hostility which will only cease when the whole matter' is 'finished up' by the accused suffering the appropriate tribal punishment. The accused is willing, indeed anxious, to undergo this punishment and feels deeply his inability to do so in order that peace between the families may be restored. So long as the matter is not 'finished up' by the ritual there will be considerable trouble between the two families and the ordinary harmony which prevails in the Warrabri community will be disrupted. It is possible, if not likely, that in times of stress or of intoxication the hostility between the families will erupt in serious violence in which people may be killed. It is certain that members of the accused's family are apprehensive of this, so much so that, for an example, the father of the accused has moved away to another district. I accept that once the ritualspearing has taken place, peace will be restored between the families and in the community.. Since the accused has to come to court in August to be tried, it will not be possible for his banishment to be effected by the community. As a result of the court proceedings the accused will either be convicted of murder or manslaughter or will be acquitted. If he is convicted, it is likely that he will be in prison for a period which will satisfy the banishment requirement even though this is as a result of the court's action rather than the community's. If he is acquitted, or, having been convicted, is dealt with in such a way that he is not in prison, the accused will return to the community and may then be banished if it is thought necessary to do so to avoid trouble. Whatever may happen as to this aspect, it is almost certain that until the spearing has taken place the matter of retribution or pay-back in Aboriginal terms will be unresolved and the community will be ill at ease and serious trouble may flare up at any time. It is equally certain that once the spearing has occurred, the unease and the probability of serious trouble arising out of the killing will be at an end.

In these circumstances and notwithstanding the fact that persons charged with murder are normally not allowed to be released on bail I considered it right to make the order which I did make. This should not be regarded as a precedent in the sense that the mere assertion of similar facts from the Bar table will be sufficient, in my view at least, to justify a similar order in every case. There must be credible evidence to support such a course being taken. As is well known, at least to the people of the Northern Territory, Aboriginal customs vary greatly from place to place and, of course, the circumstances of killings must differ. What may be almost certain to occur in one place with respect to circumstances of one killing may be unlikely to happen in another with respect to the circumstances of another killing.

I should also say that for the purpose of dealing with the application for bail I express neither approval nor disapproval of the course proposed to be taken by the family of the deceased endorsed as it is by the community including the family of the accused. Whether or not the proposed action constitutes an offence under the law of the land seems to me, for present purposes, to be irrelevant. The order for release on bail should not be interpreted as necessarily involving approval of what will happen nor, of course, should my failure to approve it be interpreted as disapproval. What will almost certainly happen is simply, for present purposes, an important fact to be considered.