Dennerstein, Lyn --- "A View from the Magistracy: Dialogue with Pat O'Shane" [1988] AboriginalLawB 41; (1988) 1(33) Aboriginal Law Bulletin 12

• A View From The Magistracy: Dialogue With Pat O’shane

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A View from the Magistracy:

Dialogue with Pat O’Shane

by Lyn Dennerstein

Lyn Dennerstein talks to Pat O’Shane about alternatives to imprisonment.

Q In the 1976 report of the Royal Commission into NS W prisons, Justice Nagle said that: "Imprisonment should be a sentence of last resort." Do you think that view is shared by judges and magistrates today?

A I don't know about judges but certainly it is a view shared by magistrates. Last week we had a conference and that view was reaffirmed. Of the people I heard speak there would have been only two who in response to how they would deal with a number of, say, high PCA's, said that they would send the person to gaol straight off. That view is very much a minority view. The overwhelming majority say that gaol is definitely the last option.

Q A crucial recommendation of the NSW Task Force on Women in Prison Report was that "maximum consideration should be given to alternatives to imprisonment whenever a gaol sentence for Aboriginal women is being considered." Has this recommendation been put into practice by the legislature or the judiciary?

A I don't think it's been put into practice by the legislature. Last year the Justices Act was amended to provide that we have to take into consideration a whole range of social and economic factors in determining the sentence that is imposed; couple that with the fact that gaol is a last resort option, then there are in practice a number of alternatives which magistrates do consider.

Specifically in relation to children we have been circularized with advices stating that we have to consider these options in order; for example a discharge under the provisions of s556A of the Crimes Act, or a bond and a recognizance under the provisions of either s556A or 558, or community service orders, that type of thing.

Q On the question of alternatives, through your work as a magistrate have you been able to glean any general attitude on the part of the judiciary towards alternatives to imprisonment, particularly in dealing with Aboriginal defendants. By `alternatives' I mean both sentencing options and procedural discretions.

A The most that I can say is that I believe there is a much greater awareness amongst the magistracy of the options that they may apply to Aboriginal as well as non-Aboriginal offenders. The magistracy along with other members of the judiciary have been notorious for simply not giving Aborigines any options at all because historically there's the attitude towards Aborigines that they are 'criminal' just by reason of the fact that they are Aborigines. Now I think there's much greater awareness of that, but at the same time there are a number of individuals amongst the magistracy who have what I consider to be very racist attitudes towards Aborigines. That's a reality of life that we can't get away from at this stage I'm afraid.

Q Do you think magistrates and judges have a proper understanding of the services offered by community-based organisations, for instance, in the area of accommodation and drug and alcohol rehabilitation facilities?

A In relation to Drug and Alcohol rehabilitation facilities, yes. The Drug and Alcohol Authority sends us out news-letters and circulars advising of the kinds of services that are available. But there is much less information about alternative accommodation.

Q Are magistrates interested in going out and having a look at some of these places and seeing how they operate? That's been done in Cairns with regard to Petford Training Farm which is a youth scheme basically operated for Aboriginal youth offenders.

A Yes. Certainly it's an individual response. We're not directed to go and have a look at the facilities that are available, so it is a matter of how a particular person feels about an issue or situation. But if the invitation is extended, there are people who are very happy to take it up.

Q What is the optimum way of presenting these options to the judiciary?

A That's a difficult one. It's very difficult, for instance, for groups to access the Magistrate's Conference which is held once a year. It's a very tightly packed agenda. The best way would be to write to the Chief Magistrate seeking to present a point of view to the Conference or to send out a circular which would then be distributed to all the magistrates. The problem with that, of course, is that there's no chance of any feedback, there's not a dialogue that gets established.

Q What l actually had in mind was the way community groups could become involved in court cases to present to magistrates that they are available as a sentencing option.

A The problem with the approach that you're suggesting is that it's just one magistrate in one court who then becomes aware of those options and you're simply replaying that particular procedure. If there are groups in the community who want it to be known widely amongst magistrates that their services are available, then they should access the magistracy generally. To aecess just one magistrate in one court at a time is very time-consuming and costly, and of very limited benefit.

Q Do you think that the legal representatives of Aboriginal defendants adequately present the sentencing alternatives to the Magistracy?

A From my experience they certainly don't. Not only do I speak about Aboriginal offenders but about a whole range of other quite poor people. One of the main problems is that far too many lawyers don't see themselves as officers of the court unless they are senior lawyers, like barristers of some years' standing. I prefer a lawyer to be totally prepared with her case and able to say to me when entering a plea and going into mitigation, for example, "These are some of the options that are available." When it comes to Aboriginal offenders I am appalled at the ignorance a lot of lawyers about what is available for Aborigines. There is a tendency on the part of bureaucracy, and for that matter a lot of social agencies, to push Aborigines into already existing facilities, and I don't know whether that's altogether a good thing, frankly. Aborigines have very specific problems which arise outof their experienceof Anglo-Australia for 200 years. Those problems manifest themselves in people's ability, never mind willingness, but ability to cope with the kinds of facilities that are provided by persons who have always regarded them as alien, and that they themselves have always regarded as alien just by reason of the bureaucratic and colonial systems. The fact that people are being pushed into those already existing facilities presents quite severe sociological and psychological problems for Aborigines.

Q A number of studies, including the NSW Task Force on Women in Prison, have shown that there is a lack of knowledge of Aboriginal culture and customs amongst the magistracy and judiciary. Do you think this might be a contributory factor to the excessive imprisonment of Aboriginal people?

A I think it is a contributory factor, but actually a very small one. I think that the major factor is the perception of Aboriginal people as bad, evil; you know, black is always associated with evil. It's not so much a question of knowledge, it's actually in our psyche. What we find is that even if people do develop an understanding and knowledge it doesn't necessarily mean that they change their attitudes: Some of the worst racists I've known have actually lived amongst Aborigines and know them very well and that doesn't change their attitudes. Take for instance welfare officers who also worked as police officers. Where I grew up in North Queensland the local District Officer was also the local Police Sergeant. Some of them actually grew up amongst Aboriginal people, but their attitudes towards them were atrocious. The subsequent treatment which the police dealt out to Aborigines was atrocious as well.

Q I read in Tall Poppies that something that had a significant impact upon you during your childhood and early adulthood in Cairns was the attitude of police and the treatment that they gave to Aboriginal people. Was it that experience of Aboriginal inequality before the law that spurred you on to become a lawyer?

A Oh, absolutely. Apart from the general experiences I had, when I was aged 21 there was an instance of 2 police officers who went on to a Reserve one Friday night. They were drunk and they used to treat it as a regular sport to go to the Reserve and sexually assault Aboriginal women. This particular couple of guys went on to the reserve this night and attempted to sexually assault these women. But the women put up a strong resistance and took refuge in their fibro hut. These policemen broke down the door of the hut and beat the women very severely. It resulted in a court case which was, in fact, quite historic. I remember sitting in what was then the Police Court and listening to the proceedings. It was as though the women, the 2 victims - one of whom was only 15 but very well developed and looking much older than her years - were the offenders. The way those women were cross-examined by the lawyer defending the police was horrific to me. I sat through 11 days of that and everything in me just screamed out against the injustice of the way those women were treated in court. The upshot of the case, however, was a very fortunate one. The men were subsequently found guilty and sentenced to imprisonment with hard labour. I also remember going in and listening to their appeals. When their appeals were disallowed they broke down and cried in the dock. I thought it was outrageous behaviour on their part. Anyway, that really did have a very profound effect on me.

Q Could we examine the more innovative options which are, and could be made increasingly more available as alternatives to imprisonment? I'm referring here to the actions of Stipendiary Magistrate Terrence Syddall in the Kimberleys in the late 1970s. He initiated the practice of releasing defendants on bail with Aboriginal communities acting assureties. I wondered what you thought of this practice and whether it could work in an urban environment.

A I know of Terrence Syddall's proposals and I've talked with him at great length about the kinds of practices that he implemented in WA. I think we have to take into consideration that he was dealing with cohesive communities existing in remote parts of WA. That's the first important thing to note, because I think the situation for urban Aborigines is very different. I also think the situation in NSW is very different from what it is in WA. Aborigines in NSW have been impacted far more by colonialism than those in WA. We have entirely different types of communities existing. Also, from observations I've made personally in my travels through various communities throughout the country, I do not think that there is the same sort of cohesion amongst the Aboriginal communities in NSW as amongst the communities that he was working within WA. So I would have doubts that such a scheme as you've referred to could work in practice here.

What alternatives are there in any event? There are community organizations with which individual offenders may be connected or of which they may be members, who perhaps would be happy to stand as sureties for those offenders. That hasn't been explored in this state, and I think it's probably worth exploring. Another option is that Aboriginal organizations become involved in the community service orders programme. I happen to favour CSOs. I'm not aware through any material that has come to me whether the Probation and Parole Service actually has Aboriginal organizations lined up as being organizations which can take in people undertaking community service orders. There has to be input from the Aboriginal organizations in the field, and I'm not aware that that is happening. Also they have to be approached and made aware that it is a possibility.

Q We have commented on the CSO; Is there anything else that you think could become more effective?

A I try to think of other alternatives, and I can'tgiven the way that our society operates and the kinds of attitudes that exist in the community generally about offenders and law and order, which are totally out of touch with reality. There's absolutely no sync between the reality that I perceive from where I sit and the reality that the rest of the community perceives from sitting in front of their television sets, forGod's sake. There's no match between these two sets of reality. Even if I do think about it in terms of a different society or a different community, I still comeback to community service orders.

Q To get back to the question of bail. Do you think that magistrates and judges use their discretion enough in favour of keeping Aboriginal people out of gaol while they are awaiting court appearances?

A I don't think so. This is a very ambiguous area. Under the Bail Act the presumption is in favour of bail. Then there are a whole range of circumstances which have to be taken into consideration when the magistrate orjudge is determining bail, including: commupity ties; having some fairly settled place to live - they don't have to have a permanent fixed place of abode, but somewhere fairly settled orat least determinable and able to berelied on; employment-and obviously that is not too common with Aboriginal offenders; etc.

Actually a much more serious issue is that often Aboriginal offenders are picked up by police and kept in police lockups for inordinate amounts of time. In fact, one of the magistrates at the conference spoke to me about the fact that a young Aboriginal had been picked up and kept in a police lockup for 8 days. I'm aware that the complaints are now legion. What is effectively happening is that police are determining the question of bail at the arrest stage, and Aboriginal offenders are just being kept in police cells. That is a matter that has to be spotlighted and action taken.

Q That's illegal action on the part of the police.

A Oh, sure. So what? They do it all the time, don't they?

Q But community action could be taken in terms of charging them for unlawful arrest?

A Well, perhaps. I'm not a person who believes in necessarily taking recourse to the law in order to rectify those kinds of faults. I think that these are political and social issues as much as anything, and that action has to be taken at those levels.

Q In your opinion, at what stage of the criminal justice process do Aboriginal people suffer the most discrimination? Is it at the stage of police intervention, prosecution or sentencing?

A As Elizabeth Eggleston pointed out years ago, discrimination exists at every level of the criminal justice system. Yet my own observations are that the point at which Aborigines suffer most discrimination is at the point of the exercise of police discretion. Police discretion in the first place to arrest or summons or whatever - even whether they should speak to the offender as opposed to proceeding with charging them, which you often get. Where the police have the option, as they have always had, of cautioning the young offender rather than taking thatyoung person into custody and charging them with an offence, more often than not - almost invariably - they would take that young person into custody and charge them with very serious offences. So at that level there's much more discrimination. If you don't have them being discriminated against at that level, then there's much less opportunity for them to be discriminated against at other levels of the criminal justice system. Then the next point is definitely the level of sentencing.

Q Do you think with regard to the police that legislation should be passed to detail the kinds of practices which they can and can't do?

A I'm more in favour of leaving things fairly open except that in this particular instance, given the kinds of attitudes and practices which exist, Aborigines are going to be far better off if there are very precise legislative provisions informing police behaviour in relation to Aborigines.

Q On a lighter note, do you have any amusing anecdotes regarding your service as a magistrate?

A I have one in particular which stands out in my mind, and will forever and ever. I'll go to my grave with this. First I have to describe the defendant: He was a very black Aboriginal fellow who was about 22 years old. He had very thick curly hair, prominently bushy eyebrows and a small moustache. In court he was wearing jeans and had a black jacket with bright yellow and red splashes striped across - an unmistakable jacket clearly displaying Aboriginal colours. Underneath that he was wearing a yellow checked shirt, and underneath that again a green T-shirt: That's the defendant.

The witness was this Anglo-Australian, in his 50s I guess. He was giving evidence about this person having stolen his car. The car was 5 kilometres down the track when he and his mate took chase. He said the car in front of his was exceeding the speed limit, that it would have been doing agood 120-150 kph, and at the very best the witness would have caught a glimpse of the driver of the other vehicle.

The prosecutor attempted to elicit a courtroom identification, and asked the witness if he saw the person in court. The witness said "yes". The prosecutor said "describe him" and he described hint thus: "He's wearing a brown jacket and a yellow shirt." I looked at the defendant and looked at the Prosecutor, and the Prosecutor gulped and looked down at the Bar table. I cast a sideways glance at the witness, who was sitting there waiting for the Prosecutor to go on. The Prosecutor said "anything else about it?" and the witness said "No". That defendant was the only black person in the courtroom. There were only half a dozen people in the courtroom anyway. Well, I just could not accept his identification, could I? In the end the case collapsed around the Prosecutor's ears.

Q Did you find out later what was wrong with the witness?

A I think he was colour blind, but I don't know.

Q Any other stories?... Blunders?

A Well, I've been called "your Majesty", but I don't think that's necessarily a serious blunder. But to be elevated to that extent is quite something.

Pat O’Shane was born in Queensland. She was the first Aboriginal woman to become a teacher in Queensland and the first Aborigine to become a lawyer in Australia. She is currently a magistrate in the NSW Local Courts.