Lyons, Greg --- "Magistrate's Remarks Considered Offensive" [1982] AboriginalLawB 38; (1982) 1(4) Aboriginal Law Bulletin 15

• Magistrate’s Remarks Considered Offensive

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Magistrate’s Remarks Considered Offensive

by Greg Lyons

The Executive Officer of the Victorian Aboriginal Legal Service, Mr Jim Berg, has written to the Victorian Attorney General drawing the Attorney's attention to certain remarks made by Mr Gillman S.M. during the course of a recent case involving an Aboriginal defendant. Copies of Mr Berg's letter have been forwarded to the Human Rights Commission and to Victoria's Chief Stipendiary Magistrate.

On 12 May, a VALS solicitor, Mr Ian Gray, appeared at Morwell Magistrates' Court on behalf of Mervyn Penrith who was facing a number of charges, to which he pleaded not guilty. Based on his client's instructions, Mr Gray cross-examined the Police Informant suggesting that he, the Police Informant, had assaulted and improperly treated Mr Penrith after the latter had been apprehended and taken to Morwell Police Station. The Informant denied the allegations put to him by Mr Gray.

At the conclusion of the Police evidence, the defendant unexpectedly instructed Mr Gray that he did not wish to give evidence. Mr Gray announced this to the court. The Magistrate indicated that he found the charges proven.

The Magistrate then commented upon the fact that the defendant had not been prepared to back up his allegations against the Police Informant by giving evidence, saying it was a 'cowardly' way for the defendant to behave. Amongst further comments criticising the defendant, the Magistrate is reported to have said that 'people of this ethnic background' frequently make allegations of improper treatment which they fail to substantiate. Mr Gray stated: 'I take issue with you on that point'. The Magistrate then indicated that he had sat on a number of cases where something similar had happened and suggested that Aboriginal people make a practice of conducting their court cases in that fashion. Mr Gray did not argue the point further. He stated that he accepted that it was not a satisfactory way to conduct a case and that he was embarrassed as a result of his client's not giving evidence.

At the conclusion of the plea, the Magistrate insisted that before he would make an Order placing the Defendant on probation, the Defendant would have to apologise to the court for casting aspersions on the conduct and character of the Informant, without substantiating the allegations by giving evidence. The Defendant made an apology. He was then placed on probation for a period of twelve months.

In his letter bringing the matter to the attention of the Attorney General, Mr Berg has pointed out the offensive character of the statement concerning 'people of this ethnic background', saying it is an affront to all Victorian Aborigines. He has indicated that requiring the defendant to make a public apology may have been unnecessarily humiliating. Mr Berg also comments that the experience of VALS solicitors - past and present - is that their clients do not make a practice of instructing counsel to put allegations of misconduct to Police in cross-examination without then giving supporting evidence.

The matter brought to the Attorney General's attention may have certain parallels with the remarks made by a Magistrate in Wilcannia Court in 1979; Aborigines were then described as 'the most interfering race of people' the Magistrate had heard of. That Magistrate was subsequently transferred to the metropolitan circuit. (See Commissioner for Community Relations, Fifth Annual Report 1980, AGPS, 1980, p. 37 and (1979) 4 Legal Service Bulletin 167). In his 1980 Report, the Commissioner for Community Relations commented: 'As in all administrations, judges and magistrates reflect prejudice which exists within the community. The obligations on judges and magistrates are no less than on other citizens. In fact the heavy responsibilities of the judiciary, combined with their independent status, imposes additional demands for objectivity and greater care in rising above ethnocentrism and inherited prejudice' (p. 37).