Neate, Graeme --- "Book Review - Northern Territory Judgments 1951 - 1976: A Selection of the Judgments of the Supreme Court of the Northern Territory of Australia" [1983] AboriginalLawB 26; (1983) 1(8) Aboriginal Law Bulletin 12

• Book Review-Northern Territory Judgments 1951-1976: A Selection Of The Judgments Of The Supreme Court Of The Northern Territory Of Australia

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Book Review -

Northern Territory Judgments 1951 - 1976:

A Selection of the Judgments of the Supreme Court of the Northern Territory of Australia

Australian Governement Printing Service

AGPS, Canberra, 1982, 1079 pages ($75).

Reviewed by Graeme Neate

Law reports do not make light reading, nor do they have a theme which carries a reader from start to finish. Rarely, if ever, do they rate a book review, whatever the merits of the judgments reported in them.

This publication is similar to other volumes of law reports, but it is worthy of mention. It draws together a selection of judgments of the NT Supreme Court in a form which makes accessible decisions that were previously difficult to locate and probably, as a consequence, little known. Other judgments of the NT Supreme Court which were reported in the Federal Law Reports, Australian Argus Law Reports, or Australian Law Reports, are listed in the table of judgments but are not reprinted.

This table and the subject index give a picture of the issues which faced the court between 1951 and 1976.

As the present Chief Justice points out in his foreword, not only will the volume be of assistance to the courts and legal profession but it is 'of considerable academic and historical interest'. This review is written with such interests in mind. At least thirty of the 174 judgments reported concerned Aboriginals. Most of the judgments reported (114) were written by Mr Justice Kriewaldt and twenty-three concerned Aboriginals.

The late Mr Justice Kriewaldt's observations on Aboriginals and the law can be found in law review articles[1] but his judgments (or, in many instances, his summing up to juries) reveal something of these views. They do not always accord with current attitudes. For example, when outlining the limitations of the Aboriginal evidence in a case where the witnesses had a limited English vocabulary, he ventured the opinion:

I do not want to say anything unkind about them, and it may be that I am wrong, but perhaps you will agree with me that generally speaking their intellect is of a comparatively low standard .[2]

Elsewhere he stated

'it is difficult for a white man at any time to follow the reasoning processes of Aboriginals'.[3]

In a case concerning the operation of the Licensing Ordinance, he started

with the proposition that it is a firm legislative decision not only that Aboriginals shall not drink alcoholic liquor but also that persons who enable them to do so shall be subjected to severe penalties. Speaking personally, I fully subscribe to the view that this legislative decision is wise in both of its aspects.[4]

He had

no hesitation in saying publicly that I regard the supplier of liquor to a native as a disgrace to the community and as a person entitled to no consideration .[5]

Despite reservations which may be held today about these views, it is clear that Kriewaldt J appreciated the many, and at times conflicting, considerations which attend the trial of an Aboriginal. His concern that justice be done was evident not only when he was summing up to juries or giving reasons for sentence but also when he acted as both judge and jury in a number of trials. He certainly attempted to keep jurors true to their oaths to decide each case on the facts, and not to let considerations of race affect their judgment. In summing up he regularly made statements to this effect, raising in passing policy questions which are still of concern to practitioners, courts and bodies such as the Law Reform Commission.

... I have got the feeling some juries do not approach these trials with the same degree of seriousness they use in the case of the trial of a white man for murder. That is quite wrong. The law has been in all Australian States ever since Australia was settled by white people, that the native inhabitants are subject to the same laws as white people ... Some people have suggested it is wrong, perhaps they are right. I do not know. It is not for me to comment on social policy, it is my duty to tell you the law draws no distinction, as far as murder is concerned, between black and white. Some people have suggested it is wrong to try natives by a judge and jury, there should be a different tribunal to try their cases ... It may be that [such a tribunal) would arrive at a better verdict - I do not know. I do say to you, to approach the case and the evidence in this case as if the accused were a white person - he is entitled to the same protection as every man in this country.[6]

During a murder trial, Kriewaldt J said to the jury, with reference to the assertion that the accused had acted in accordance with his tribal law which he considered binding,

I have some very definite views regarding the trial of natives for offences of this kind. You may have them ... If the law is to be altered I have a right to suggest alterations but not whilst sitting on this bench today.[7]

His 'definite views' are evident in his remarks on passing sentence and the sentences themselves:

In general, it has been my practice ... to impose on natives sentences substantially more lenient than the sentences imposed on white offenders for similar offences .. where the injured party was also either wholly or partly an Aboriginal native.[8]

Where 'tribal law or custom' might be relevant he endeavoured to inform himself on these topics either by hearing evidence in court or perusing material available to him which seemed to bear on the point.[9] He even, it seems, went so far as to research anthropology textbooks to find views contradictory to those given by a witness.[10] And, despite the government policy of the time, he concluded that

it would be wrong to increase or decrease an otherwise just sentence in order to give effect to the official policy of accelerating the assimilation of the native population of the Territory.[11]

Kriewaldt J was aware of the limitations of written transcripts of Aboriginal evidence which, in his experience, were seldom accurate records of the effect of the evidence:

It is only experience which will enable a decision to be made as to which of the several contradictory recorded answers truly records the evidence the witness desires to give.[12]

The judgments of other judges merit attention as they show, for example, criteria considered when deciding whether an Aboriginal child maybe adopted by non-Aboriginals, and when sentencing Aboriginals. As the question of recognition of customary marriages is still being considered it is interesting to note a decision of Bridge J who presumed the tribal marriage of two Aboriginals to be valid after nineteen years of their constant cohabitation, notwithstanding the absence of evidence that necessary statutory formalities had been observed. He also treated seriously the 'recognition of the union by the applicants' tribe and the force of family ties in normal Aboriginal life.'[13]

Time can be fruitfully spent reading many of the judgments in this volume to see how current problems in the application of the law to Aboriginals were dealt with in the not-too-distant past.

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[1] The Application of the Criminal Law to the Aborigines of the Northern Territory of Australia' [1960] UWALawRw 1; (1960-62) 5 UWAL Rev 1; see also G. Sawer in (1960-62) 1 Adel L Rev.

[2] R v Aboriginal Wally [1951] NTJud 5; (1951) NTJ 21, 23.

[3] R v Allan Kunoth [1957] NTJud 6; (1957) NTJ 420, 426.

[4] Albert Namatjira v Gordon Edgar Raabe (1958) NTJ 612, 627 628.

[5] R v Anderson [1954] NTJud 5; (1954) NTJ 240, 249.

[6] R v Aboriginal Johnny Scott Mac Donald [1953] NTJud 7; (1953) NTJ 186,186-187.

[7] R v Aboriginal Charlie Mulparinga [1953] NTJud 10; (1953) NTJ 205, 209.

[8] R v Anderson [1954] NTJud 5; (1954) NTJ 240, 248.

[9] Ibid.

[10] Albert Namatjira v Gordon Edgar Raabe (1958) NTJ 612, 629-630.

[11] R v Aboriginal Charlie Mulparinga [1953] NTJud 12; (1953) NTJ 219, 223.

[12] Lewis v Metcalfe [1959] NTJud 2; (1959) NTJ 639, 641.

[13] R. v Silvester Pilmapitjimiri and others [1965] NTJud 2; (1965) NTJ 776. 785.