Goode, Matthew --- "Still Jailing the Poor - Two Recent Decisions on the Criminal Law as Applied to Aboriginal in South Australia" [1983] AboriginalLawB 28; (1983) 1(9) Aboriginal Law Bulletin 4

• Still Jailing The Poor-Two Recent Decisions On The Criminal Law As Applied To Aboriginal In South Australia
• Background
• Harsh And Oppressive
• Aboriginal Victimisation
• Odius Law
• Appeal Dismissed: System Fails

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Still Jailing the Poor -

Two Recent Decisions on the Criminal Law as Applied to Aboriginal in South Australia

by Matthew Goode

If some who read the decisions of the appellate courts on the operation of the criminal law are often puzzled or outraged by their conclusions, those who pay particular attention to the cases involving aboriginal defendants often find that the defects of the criminal law are magnified in such cases.

Background

The first case involved an aboriginal of 19 years of age by the name of Koncz. He was single and had been unemployed for the last two years. He lived with his mother and paid rent of $30 per fortnight for his board. Mr Koncz had been in occasional contact with the police. In 1980, he had been fined $40 for theft and in 1981 he had been fined $25 for disorderly behaviour. Nevertheless, he continued to attract the attention of the police, for in 1981 he was fined $100 as a result of conviction for habitually consorting with reputed thieves, an offence against s.13 of the Police Offences Act, 1953-1981, (S.A.). This disciplinary measure must have had little effect on Mr. Koncz, for in 1982 he was charged with a second offence against the section. The complaint specified fourteen contacts with reputed thieves to establish the habituation of the consorting over a period of less than five months. The complaint named ten alleged reputed thieves. Mr. Koncz pleaded guilty and was sentenced to imprisonment for one month with hard labour. The offence carried a maximum of $200 or imprisonment for six months.

Harsh and Oppressive

The reader may find this odd, but perhaps unremarkable until it is revealed that first, the reputed thieves with which Mr. Koncz consorted on both occasions were substantially the same persons, and second, that ten of the fourteen occasions specified in the second complaint involved two persons said to be first cousins of the offender. The Court of Summary Jurisdiction was of the opinion that the offender had not profited from the learning experience of the first penalty and hence decided that imprisonment was the appropriate penalty. Mr. Koncz appealed to a single judge of the Supreme Court on the ground that the penalty was manifestly excessive in all the circumstances. Counsel for the offender argued that the maintenance of family ties was of particular importance to an aboriginal person and it was therefore unreasonable to expect an aboriginal to cut himself off from his family, and this was particularly so of a young aboriginal who was out of work and living with his family with no prospect that that situation could or would change.

This argument made no impact on the appellate court. The sentence of imprisonment was confirmed. Mr. Koncz went to jail for persistently associating with his extended family. This outrageous result is the consequence of

(a) an unfettered use of police discretion to arrest and prosecute,
(b) the application of, at best, an indefensibly overbroad criminal offence
and
(c) some very tenuous judicial reasoning on appeal.

Aboriginal Victimisation

First, nothing in the judgment explains the selection of this accused for arrest and prosecution. His criminal record on the face of it supports no more than the inference of some trivial juvenile dishonesty, the results of police attention to an aboriginal gathering in a public place, and a decision to punish the accused for associating with those whom the police regard as undesirable influences. If there was more to it than that, those considerations were not brought out on appeal to defend the sentence of imprisonment. The analogous and much reviled English "sus" law, now thankfully repealed, was found to have been enforced in a racially discriminate manner by English police.[1]

Given that the South Australian offence is rarely invoked, it is difficult to resist the inference that Mr. Koncz's aboriginality was a significant factor in the decision to arrest and prosecute. Of course, the arrest and prosecution discretions are unreviewable, and so the truth will not be known.

Odius Law

Secondly the offence is thoroughly objectionable. The offence is a vestige of the justly despised vagrancy legislation originating in the social inequities and repressions of feudal England. It is discriminatory, not only in the sense that its current application may be racially discriminate, nor only in the sense that its current role appears to be as a device of harassment in general, but also in the sense that if there is to be such an offence, why should persons be permitted to consort with reputed bank robbers, corporate criminals, rapists or criminal racing identities? The offence is clearly directed to the social activities of an underclass, and if enforced in accordance with its repressive intent. Thirdly the offence is morally objectionable. It represents an extremely heavyhanded attempt to prevent the commission of crime before it reaches the stage of an attempt; (but not, presumably, a conspiracy), it is so remote from the harm projected that there is no rational connection between the danger, if any, posed by the relationship and the crime contemplated. It is objectionable to send a person to prison for the company he or she keeps, outrageous if that company is part of the same family group. Fourthly the offence is so broad in its application that it vests inordinate unreviewable power in the police. It is, for example, unnecessary to prove that the associates of the accused were actually thieves. It suffices that a police officer gives credible evidence of their general reputation. It is difficult to imagine a situation in which an accused could successfully challenge such evidence. Fifthly, as this case demonstrates, the offence may demand absurd results. The police have the power to break up the mythical thieves' kitchen and a family relationship. There is no reason in law why the police cannot testify that some members of a family are reputed thieves and so effectively shortcircuit the powers and procedures of the Department of Community Welfare by sending another member of the family to jail if he or she does not find their own foster home. A more Dickensian visiting of the sins of the parents upon their children could hardly be imagined.

However the fault of the legislature in this sorry tale does not lie merely in its neglect of a duty to ensure that the criminal law which it foists upon the citizenry should be free of the excesses of an earlier generation of legislators. No doubt the best of them, once informed, would have hoped that the offence had slipped into quiet desuetude or was being applied with a sense of social responsibility. There is, however, an additional matter to be considered. The South Australian legislature had expended time, effort and resources to set up the Criminal Law and Penal Methods Reform Committee to examine, among other things, the substantive criminal law of South Australia, presumably with a view to the elimination of such anomalies. That Committee recommended the repeal of s. 13 in its fourth report in 1977, and that recommendation, in common with most of the rest of the report, has come to nought. The reasons are not hard to find. When approached, the Attorney-General's response was that he saw the problem but the pressures of Cabinet and Parliamentary time, the demands of the legislative programme and the shortage of legislative drafters means that the reform must wait.

The Committee also recommended that the police be empowered to serve a notice on persons found to be habitually consorting with reputed thieves, prostitutes or thugs requiring the person to desist from such behaviour with a provision that such notice might be rescinded upon appeal to the District Court. It would be an offence to fail to comply with a notice unless it was rescinded. This recommendation should not be implemented. While more conciliatory in nature, the suggested reform meets precisely none of the objections detailed above. Moreover, it places the onus on the accused to demonstrate that the notice ought to be rescinded. It gives no guarantee that the horrible result in the case of Mr. Koncz would be any different.

Appeal Dismissed: System Fails

The case of Mr Koncz gives no assurance that judicial intervention will serve to ameliorate the injustices of the measure. Matheson J., on appeal, could have effectively set all of this at nothing by employing the wide discretion of the appellate judge to decide that the sentence was manifestly excessive. He did not. He relied upon authority in dismissing the appeal. In Gabriel v. Lenthall, [1930] SAStRp 62; (1930) S.A.S.R. 318 Richards J. upheld a sentence of one months' imprisonment on appeal. His Honour stated that: "... imprisonment is a punishment which fits the crime of habitually consorting with reputed thieves much better than a pecuniary penalty, except in a case where there is some special reason to the contrary". It must be remembered that sentencing practices and options have changed since 1930, and one might be forgiven for thinking that there was some special reason to the contrary in the instant case. Neither of these matters were considered on appeal.

Moreover, Richards J. was considering an earlier form of the section in which imprisonment was the only form of penalty specified, subject to a general discretion then contained in the Justices Act to impose a fine in lieu of the penalty of imprisonment provided without the alternative. The alternative of the fine has since been added to the section specifically. Despite the argument that this altered the authority of Gabriel, Walters J. held, in Wilson v. Giles, (1966) S.A.S.R. 361, that the observations of Richards J. retained currency and confirmed a sentence of three months. There is an obvious and excellent argument that this latter decision is clearly wrong.

There is an equally good argument that the observations of Richards J., even if appropriate at one time, are now otiose. Any examination of sentencing practices and options reveals that what was standard in 1930 is exceptional now. It is hard to see what could possibly be achieved by placing this offender in prison. There was no evidence that the offender was any danger to anyone nor was there any evidence that either he or society at large would profit from the move. The total failure of the prison system in South Australia as an agency of reform is a matter of official record. A better way to sour and alienate the offender could hardly be imagined. There can be no doubt that both the trial court and Matheson J. could have avoided the custodial sentence had they so desired. They did not do so. Their reasons are woeful. Every agency of the criminal justice system failed Mr. Koncz. I wonder where he is now, and how long it will be before he is back.

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[1] Stevens and Willis, Home Office Research Study No. 58, Race Crime and Arrests, (1980) at 32-33).